Fidelity-Phoenix Fire Ins. Co. v. Ray

• Decision Date: 11 May 1916
• Docket Number: 6 Div. 107
• Citation: 72 So. 98,196 Ala. 425
• Parties: FIDELITY-PHOENIX FIRE INS. CO. v. RAY.
• Court: Alabama Supreme Court

72 So. 98

196 Ala. 425

FIDELITY-PHOENIX FIRE INS. CO. v. RAY.

6 Div. 107

Supreme Court of Alabama

May 11, 1916

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Suit by C.G. Ray against the Fidelity-Phoenix Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles A. Calhoun, of Birmingham, for appellant.

Finch &amp Pennington, of Jasper, for appellee.

GARDNER J.

Suit by appellee against appellant, substantially in Code form, on a fire insurance policy. This is the second appeal in the cause. See Ray v. Fidelity-Phoenix Ins. Co., 187 Ala. 91, 65 So. 586.

The defense of failure on the part of the plaintiff to make and render to the defendant company within 60 days after the fire proof of loss as specified in the policy, and the replications of the plaintiff with reference to such pleas were treated by this court on the former appeal and need no comment here.

The defense was pleaded in plea 5 that the policy contract provided that the policy should be void if the interest of the insured be other than unconditional and sole ownership of said property, and that at the time of the issuance of the policy there was mortgage on said property which was unknown to defendant or its authorized agent, and at the time of the loss complained of said property had been sold under a foreclosure proceeding under the terms of said mortgage; one J.B. Whitehead being the purchaser.

In replication 4 to plea 5 plaintiff set up that one McLaughlin was the agent of the defendant and that as such agent he countersigned the said policy of insurance and issued it, or procured its issuance, to the plaintiff; and that before and at the time of the issuance of said policy the plaintiff fully advised said McLaughlin as such agent, and fully disclosed to him the character of his title, and that, with full knowledge of the true condition of the plaintiff's ownership and title, said agent issued plaintiff the insurance, accepting the premium thereon, and delivering the policy to plaintiff. The sufficiency of this replication was challenged by demurrer, which was overruled. This ruling was without error. Pope v. Glens Falls Co., 130 Ala 356, 30 So. 496.

The defendant, by plea 2, invoked the further defense that the policy contract provided that the same should be void if with the knowledge of the insured, foreclosure proceedings be commenced or notice given of any property covered by virtue of any mortgage, and that said property had been mortgaged by the plaintiff and sold under the power of sale therein, of which sale the plaintiff had notice, and that the foreclosure deed was delivered and the sale made prior to the loss.

The plaintiff in replication 6 to said plea 2 answered that there was a provision in said policy authorizing the defendant to cancel the same by giving five days' notice of such cancellation, that the defendant had knowledge that the property covered by said policy was advertised for sale under the power contained in said mortgage for three weeks before it was sold under said power, and that the defendant, with full knowledge of said facts, failed to cancel the policy of insurance and thereby waived said condition.

"The stipulations in the policy against the increase of

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