Fox v. Queen Ins. Co. Of Am.

• Decision Date: 19 February 1906
• Citation: 124 Ga. 948,53 S.E. 271
• Court: Georgia Supreme Court
• Parties: FOX. v. QUEEN INS. CO. OF AMERICA.

53 S.E. 271

(124 Ga. 948)

FOX.

v.QUEEN INS. CO. OF AMERICA.

Supreme Court of Georgia.

Feb. 19, 1906.

1. Insurance—Insurable Interest.

Under the provisions of Civ. Code, 1895, § 2090, a husband or parent has such an insurable interest in the separate property of his wife or child as to authorize him to make a contract of insurance in relation to the same in their behalf, although he have no interest whatever in the property. But such a contract to be valid must be made by the husband or parent in his representative capacity, not as an individual.

[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, § 153.]

2. Same—Action on Policy—Ownership or Property.

A policy of fire insurance was issued to A. individually, purporting to insure a described building. There was nothing in the policy to indicate that A.'s interest was other than individual. The policy contained a stipulation that it should be void "if the interest of the insured be other than unconditional or sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple." After a loss a suit was brought upon the policy by A. as trustee for his children, the petition alleging that he held title to the property in trust for his children. Held, that the petition was properly dismissed on demurrer.

(Syllabus by the Court.)

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by A. R. Fox, as trustee, suing for the use of William W. Fox and others, against the Queen Insurance Company of America. Judgment for defendant, and plaintiff brings error. Affirmed.

A. R. Fox, as trustee, suing for the use of William W., Mary Jane, Jane E., Lillie Evaline, and John Anderson Fox, brought an action against the Queen Insurance Company of America, and alleged the following facts: On March 18, 1904, in consideration of two dollars and fifty cents, the defendant issued to A. R. Fox a policy of insurance in the sum of $200, insuring him against loss by fire on a certain dwelling in Dalton, Ga. The property was held by A. R. Fox in trust for his children, for whose use he sues; and it is alleged that the policy was taken out for the benefit of said children, although it was Issued to A. R. Fox Individually. The property was totally destroyed by fire, and after proofs of loss were furnished to the defendant, the defendant refused to pay any sum upon its policy. By amendment it was alleged, that Lillian Evaline Fox died before reaching the age of 21, leaving one minor child, and that "the remaining cestuis que trustent were of age when the policy was issued." A copy of the policy was attached to the petition as an exhibit, and contained the following stipulation: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the Interest of the insured be other than un conditional and sole ownership; or If the subject of insurance be a building on ground not owned by the insured in fee simple." When the case was reached for trial the defendant moved to dismiss the petition as amended, for the reason that it set forth no cause of action. The petition was dismissed, and the plaintiff excepted.

R. J. & J. McCarny and W. E. Mann, for plaintiff in error.

King, Spalding & Little and Shumate & Maddox, for defendant in error.

COBB, P. J. (after stating the foregoing facts). Under the petition as amended, it appeared that four of the cestuis que trustent for whose benefit A. R. Fox took out the policy of insurance had reached the age of 21 years previously to the issuance of the policy, and the fifth cestui que trust had died. If, therefore, Fox held the legal title to the property as a trustee previously to the issuance of the policy to him, the trust has apparently become executed as to four of the beneficiaries, and it may be that it would appear, if the instrument creating the trust were before us, that he had been divested of the legal title, at least as to a four-fifths interest in the property. But we do not base the decision of the case on the. apparent fact. Section 2090 of the Civil Code of 1895, is as follows: "To sustain any contract of insurance, it must appear that the insured has some interest in the property or event Insured, and such as he represented himself to have. * * * So a husband or parent may insure the separate property of his...