Great American Ins. Co. v. Dover

• Decision Date: 16 October 1930
• Docket Number: 6 Div. 487.
• Parties: GREAT AMERICAN INS. CO. v. DOVER ET AL.
• Court: Alabama Supreme Court

130 So. 335

221 Ala. 612

GREAT AMERICAN INS. CO. v. DOVER ET AL.

6 Div. 487.

Supreme Court of Alabama

October 16, 1930

Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.

Action on a policy of fire insurance by Perry Dover and E. L. Dover against the Great American Insurance Company. From a judgment for plaintiffs, defendant appeals.

Reversed and remanded.

Coleman Coleman, Spain & Stewart, of Birmingham, and Nash & Fendley of Oneonta, for appellant.

J. T Johnson, of Oneonta, for appellees.

BROWN J.

On a former appeal the judgment was reversed for error in overruling the defendant's demurrers to the plaintiffs' replication to plea 6, alleging a breach of warranty embodied in the policy that the dwelling house "did not contain a brick on edge flue," in that "at the time of the issuance of said policy and for a long period during the term of the policy said frame building *** did contain a brick on edge flue," which fact increased the risk of loss. Great American Insurance Co. v. Perry Dover et al., 219 Ala. 530, 122 So. 658.

Another defense asserted by defendant's plea 2 on both trials was that the property was willfully burned by Perry Dover, one of the plaintiffs, with intent to defraud the defendant, and the questions now presented are pertinent to that issue.

The evidence on this issue was in sharp conflict, presenting a question for jury decision.

The subject-matter of the insurance was the one-story, shingled roof dwelling, smokehouse, and barn on a farm known as "the Fricks property," purchased by the plaintiffs in the spring of 1925, which were insured by the policy in suit, issued on November 4, 1925, for one year, against loss by fire. E. L. Dover, one of the plaintiffs, while under cross-examination, testified: "We bought that place from Frick's estate. There was some thirty odd acres (39 acres as other evidence shows) of the land. I guess it was worth about $50.00 per acre. We paid $2,000.00 for the whole thing. We gave a mortgage on it." He was thereupon asked: "How much was due on the mortgage at the time of the fire?" The plaintiff objected to this question and the court sustained the objection.

To quote from Cooley's Briefs (2d Ed.) p. 5007, "On the issue of incendiarism, involving as it does moral turpitude and criminal intent, every circumstance tending to prove the guilt of the party charged is admissible in evidence," and the amount of the incumbrance on the insured property, as well as the fact of such incumbrance, was relevant and material to the question of motive to destroy the property as a means of acquiring the insurance to meet the incumbrance. It was also relevant as going to show the pecuniary interest of the plaintiff in the insured property. Aachen & Munich Fire Ins. Co. v. Arabian Toilet Goods Co., 10 Ala. App 401, 64 So. 635...