Girard Fire & Marine Ins. Co. v. Gunn

• Decision Date: 20 March 1930
• Docket Number: 8 Div. 140.
• Citation: 221 Ala. 654,130 So. 180
• Parties: GIRARD FIRE & MARINE INS. CO. ET AL. v. GUNN.
• Court: Alabama Supreme Court

130 So. 180

221 Ala. 654

GIRARD FIRE & MARINE INS. CO. ET AL. v. GUNN.

8 Div. 140.

Supreme Court of Alabama

March 20, 1930

As Modified on Denial of Rehearing June 26, 1930.

Further Rehearing Denied October 23, 1930.

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Actions on policies of fire insurance by E. E. Gunn against the Girard Fire & Marine Insurance Company, of Philadelphia, and the Palatine Insurance Company, Limited, of London, England consolidated by agreement. From a judgment for plaintiff defendants appeal.

Reversed and remanded.

Coleman Coleman, Spain & Stewart, of Birmingham, and Eyster & Eyster, of Decatur, for appellants.

S. A. Lynne, of Decatur, for appellee.

THOMAS J.

The appeal is from two judgments consolidated by agreement. They involved the same questions, and were tried as one case in the circuit court.

This is the second trial that has resulted in judgment for plaintiff. The first appeal-that from the granting of a new trial-was affirmed in Gunn v. Palatine Insurance Co., 217 Ala. 89, 114 So. 690.

The pleadings on this, the last trial, consist of complaint in Code form, declaring upon the policy of fire insurance, pleas 2, 5, 6, 8, 10 to 16, inclusive, to which demurrers were sustained, and pleas 1, 3, 4, 7, and 9, to which plaintiff's demurrers were overruled. The trial was had on these pleadings and replications 2, 3, 4, and 6 to pleas 3 and 9, which averred knowledge or notice of the matters set up in the pleas indicated-of the condition of the title and nature of assured's interest in the property.

The classes of pleas on which trial was had were general issue (plea No. 1), that setting up contract provisions of the policy, that same would be void if the subject of the insurance was located upon land not owned by assured, or "if the interest of the assured be other than unconditional and sole ownership," and averred that breach (plea No. 3).

It is further pleaded the provisions of the policy against vacancy or nonoccupancy for a period of thirty days (plea 4), and that plaintiff did not have an insurable interest in the property at the time of its destruction by fire (plea 7); that the interest of assured was other than unconditional and sole ownership, and the breach of stipulations of the policy as to this (plea 9).

A number of facts are undisputed. The evidence showed substantially that the insured property, prior to the time the plaintiff attempted to purchase it, was owned by Dr. Stubbs, who died about the last of June or the 1st of July, 1924; it was not his homestead, as he and his family lived in the state of Louisiana at the time of his death. Dr. Stubbs attempted to will all of his property to his wife, Elizabeth S. Stubbs; that instrument was invalid under the Alabama law, for the reason that it was not properly witnessed. The testator, at the time of his death, did not have any children surviving him, and he owned other property; he had a number of heirs who were his nephews and nieces. The property in question descended upon his death to his heirs at law, subject to a prospective or contingent right of dower in his widow, Mrs. Elizabeth S. Stubbs.

After the death of Dr. Stubbs (on the 30th day of June, 1925), the plaintiff entered into a contract with Mrs. Elizabeth S. Stubbs whereby she agreed to sell, and he agreed to buy, the insured property for the sum of $1,500, of which $150.00 was payable in cash and the balance in installments of $500 in six months from July 1, 1925, and $850 due in twelve months from July 1, 1925. Mrs. Stubbs, on the day of that purported sale, executed a warranty deed conveying the property to the plaintiff. This warranty deed was placed in escrow to await fulfillment of completed payments of the purchase price.

The evidence shows that the plaintiff had never made other payments than the $150 on the contract; had not secured delivery of the deed, and had paid no sum whatsoever other than the one indicated-the $150 which he paid at the time of the execution of the contract on June 30, 1925. Three months thereafter the property was destroyed by fire (on or about September 11, 1925); and some of the witnesses testified that, although on the last day of June the plaintiff had agreed to purchase the house and lot for the sum of $1,500, the reasonable value of the house (not including the lot) was $4,000 to $4,500. The testimony tended to show further that the house was vacant for more than thirty days prior to the fire; that a short time prior to the fire some bathroom fixtures were removed from this house.

The evidence failed to show that dower had been set aside or assigned to Mrs. Elizabeth Stubbs, or that she was entitled to any dower in the insured property.

The plaintiff introduced one witness who was a member of the firm of Wyatt & Son, who issued the policies, and who testified that before the policies were written he had learned that the will of Dr. Stubbs was invalid; but no evidence was introduced to show that he acquired such knowledge while acting as agent for the appellant in the instant transaction, or acquired it while acting within the line and scope of his authority as agent for the appellant. The evidence is undisputed that Wyatt & Son were also real estate agents who negotiated the sale of the property from Mrs. Stubbs to plaintiff. Could the reasonable inference be drawn that Wyatt & Son acquired the knowledge as to the invalidity of the will while acting as agent in selling the property?

Plaintiff testified he did not know how long Dr. Stubbs had owned this property; could not swear that Dr. Stubbs "ever owned this individual property"; understood he had a good deal of property in town, including this property; understood he owned it some time prior to his death.

Defendant introduced the will of Dr. William Carter Stubbs, in which he gave all of his property in the states of Virginia, Alabama, and Louisiana to his wife, with full power of disposition. It was witnessed by only one witness-Wm. H. Brynes, Jr., judge.

Defendant examined L. B. Wyatt, who testified that he knew Dr. W. C. Stubbs, and that the latter owned this property at the time of his death; that Mrs. Stubbs was in the possession of the property during the year 1925, and that prior to June 30th she collected rents from it, and claimed to own it; that after June 30th rent was collected by the plaintiff from various tenants; that he sold this property to plaintiff as agent for Mrs. Stubbs, and during the time he was acting as insurance agent for defendants; that the defendants were insuring this property for Mrs. Stubbs until it was purchased by the plaintiff; and at this time witness so advised the defendants, and they instructed witness to cancel the policy in Mrs. Stubbs and rewrite it in the plaintiff's name, with the loss payable clause to Mrs. Stubbs, and all of which was shown by his daily report to them; that he did not know of his own knowledge whether prior to his death Dr. Stubbs had conveyed his interest in the property to his wife; that "along about February, 1925, prior to the sale of the property to the plaintiff," the heirs of Dr. Stubbs entered into an agreement, and "did agree" to quitclaim any interest they might have in the Dr. Stubbs property to Mrs. Elizabeth Stubbs; that the conveyance of their several interests to Mrs. Stubbs was on March 1, 1926. As to this, the record recites:

"The witness was then asked the following question:

"Q. Mr. Eyster asked you if you had any written authority from the heirs of Dr. Stubbs to convey this property to Mr. Gunn-Now I will ask you if it isn't a fact that along about February, before this sale took place, if the heirs did not agree that they would quitclaim any interest that they might have in Dr. Stubbs property to Mrs. Elizabeth Stubbs?

"The defendants objected to the question on the ground that it called for irrelevant, illegal and immaterial and secondary evidence in violation of the statute of frauds, and calls for an opinion of the witness. The court overruled the objection and the defendants then and there duly reserved an exception.

"The witness answered: A. They did.

"Whereupon the Court stated: I permitted that to go in for the purpose of showing whether or not the witness being examined, knew the condition of the title of the property in the policy.

"The witness was then asked the following question:

"Q. Now, the premiums that were paid on these policies, $37.37 on one, and $37.35 on the other, was the premium for the full interest in that property wasn't it?

"The defendants objected to that question. The court overruled the objection and the defendants then and there duly reserved an exception.

"The witness answered: A. Certainly, yes."

This witness testified that the premiums were paid on these policies for the full interest in the property, and he had authority from the defendants to collect this premium. This property was occupied by tenants on up until just a few days before the fire.

The defendants introduced in evidence a deed from the heirs of Dr. William Carter Stubbs (of date of March 1, 1926), reciting that Dr. Stubbs died July 7, 1924, leaving a last will and testament, which had been duly recorded in the office of the judge of probate of Morgan county, Ala., and which said will conveyed all the property of Dr. Stubbs to his wife; that they desired to ratify, adopt, and confirm all of the provisions of said will, and to that end executed a deed conveying to her all their right, title, and claim in and to the various lots of land, including the lot in question. The date of that conveyance was March 1, 1926; the house in question was destroyed by fire September 11, 1925, and the policy issued on July 4, 1925.

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