Dixie Fire Ins. Co. v. Flippo

• Decision Date: 14 April 1938
• Docket Number: 8 Div. 879.
• Parties: DIXIE FIRE INS. CO. v. FLIPPO.
• Court: Alabama Supreme Court

181 So. 117

236 Ala. 116

DIXIE FIRE INS. CO. v. FLIPPO.

8 Div. 879.

Supreme Court of Alabama

April 14, 1938

Rehearing Denied May 19, 1938.

Appeal from Law and Equity Court, Lauderdale County; Robt. M. Hill Judge.

Action on a policy of fire insurance by Claude Flippo against the Dixie Fire Insurance Company of Greensboro, N. C., to recover for loss of household goods destroyed by fire. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

Coleman Spain, Stewart & Davies, of Birmingham, for appellant.

Fred S Parnell, of Florence, for appellee.

THOMAS Justice.

The suit was for recovery on fire insurance policy.

The rule declared in this court is that an assured, not owning the title, the insurer could not be said to have waived this defect in title or interest without notice, unless defendant or its authorized agent knew before the policy was issued that plaintiff did not own a title to the property, but did own an insurable interest therein, and unless the nature of plaintiff's interest was fully disclosed and known to defendant, or, unless with full knowledge by the defendant or its authorized agent of the nature of such insurable interest as plaintiff had, the policy was issued by defendant or its authorized agent and delivered to the plaintiff with full knowledge. North River Insurance Co. v. Flippo, Ala. Sup., 181 So. 114; Royal Exchange Assur. of London, Eng. v. Almon, 206 Ala. 45, 89 So. 76; American Equitable Assur. Co. v. Powderly Coal & Lumber Co.,

225 Ala. 208, 142 So. 37; Insurance Company of North America v. Williams, 200 Ala. 681, 77 So. 159; Girard Fire & Marine Ins. Co. v. Gunn, 221 Ala. 654, 130 So. 180.

The replications to pleas 2 and 3 are sufficient answer to the respective pleas and do not fall within the rule indicated in and applied to the pleading as dealt with in the case of North River Insurance Co. v. Flippo, Ala.Sup., 181 So. 114.

The evidence supported the respective pleadings and the pleading involving waiver, and a jury question was presented. North River Ins. Co. v. Flippo, Ala.Sup., 181 So. 114; McMillan v. Aiken et al., 205 Ala. 35, 88 So. 135; Jones v. Bell, 201 Ala. 336, 77 So. 998. There was no error in declining to give the general affirmative charge requested in writing by defendant.

There was no error in rulings on evidence that had not been duly indicated and argued. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

In its oral charge the court said:

"Now Gentlemen, generally speaking, under the law, when a house is built on real estate--that is land--it becomes part of the real estate and the person owning the real estate is presumed automatically to own the house. But, if there is a separate and distinct contract made when a person puts a house on a lot, owning the house itself and not the lot, and there is a valid binding contract that the house is his although the land is not his, and the house and land is each separate, then testimony is admissible to show who owns the house in spite of that presumption that the person who owns the lot owns the house.

"That is an issue for you Gentlemen to decide and you must decide it from the testimony in the case.

"If he did not own the house and you are reasonably satisfied of that from the testimony in the case it would be your duty to find your verdict for the defendant, under those three pleas. If he did own the house then you could not find your verdict for the defendant under those three pleas."

The pleas referred to in the court's oral charge, 4, 5, and 6, were to the effect that the policy insured the furniture and household goods contained in the building described in the policy as being occupied by the owner of the dwelling house. It is averred that, at the time of the fire, the building was not so occupied. The evidence was to the effect that the assured had a right of property, of ownership and occupancy in the house in question where the personal property was located at the time of the fire. There was no error in such part of the court's oral charge to which exception was taken.

The law of trade fixtures becoming a part of the realty is well settled in Johnston, Receiver, v. Philadelphia Mortgage & Trust Co., 129 Ala. 515, 30 So. 15, 87 Am.St.Rep. 75. Such are not the facts in the case before us. In this case, the right of occupancy, the right of living in the house at the time, under the lease sales contract from the owner of the fee, was an ownership in the house in the sense dealt with by the parties in the policy and which was made the subject of oral instruction of the court to the jury. The policy was as follows:

"To the Following Described Property While Located

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