Gunn v. Palatine Ins. Co., Ltd., of London, England, 8 Div. 394.

• Citation: 149 So. 672,227 Ala. 245
• Decision Date: 01 June 1933
• Docket Number: 8 Div. 394.
• Parties: GUNN v. PALATINE INS. CO., LIMITED, OF LONDON, ENGLAND, et al.
• Court: Alabama Supreme Court

149 So. 672

227 Ala. 245

GUNN v. PALATINE INS. CO., LIMITED, OF LONDON, ENGLAND, et al.

8 Div. 394.

Supreme Court of Alabama

June 1, 1933

Rehearing Denied Sept. 28, 1933.

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

Action on policies of fire insurance by E. E. Gunn against the Palatine Insurance Company, Ltd., of London, England, and another. From a judgment for defendants, plaintiff appeals.

Affirmed.

Lynne &amp Lynne, of Decatur, for appellant.

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

BOULDIN Justice.

This is the third appeal in this cause. For former decisions, see Gunn v. Palatine Insurance Co., 217 Ala. 89, 114 So 690; Girard Fire & Marine Ins. Co. v. Gunn, 221 Ala. 654, 130 So. 180.

The question of sole and unconditional ownership of the insured property, and the ownership of the land in fee simple, fully considered on former appeals, is again argued.

Like former records, it is without dispute that the property was owned by Dr. Stubbs, a resident of New Orleans, at the time of his death in 1924.

He left a document purporting to devise this property to his wife, Elizabeth Stubbs; but, not being witnessed, it was void as a will, and was never probated. Mrs. Stubbs, having an unassigned dower right therein, and pending negotiations with the heirs at law to convey the property to her, took possession and took out insurance in her name.

At this stage the plaintiff, Gunn, in close touch with L. B. Wyatt & Son, her real estate agents in charge of the property, negotiated a purchase of the property; the agents assisting in the transaction and getting a commission on the sale.

The property was purchased for $1,500, of which $150 was paid to the agents; a warranty deed was drawn and signed, and put in the hands of the agents in escrow, to be delivered if and when the remaining purchase money was paid, and if and when the grantor acquired a complete title from the heirs. The purchaser took possession or control over the property.

L. B. Wyatt & Son were also insurance agents representing these defendants. Mr. Gunn wanted $3,000 of insurance on the building. The insurance theretofore held by Mrs. Stubbs was canceled, and these policies, $1,500 in each of two companies, were issued by said agents who collected the premium as for full amount, made the policies to Mr. Gunn, with loss payable clause to Mrs. Stubbs, as her interest should appear. No further sum was ever paid, the deed was never delivered, nor was any title perfected in Mrs. Stubbs until the property was destroyed by fire.

Without reviewing the argument and holding on both former decisions, we adhere to the view that no sole and unconditional ownership was in the insured, Gunn, nor in him and Mrs. Stubbs, a beneficiary named in the policies, within the meaning of such contracts.

With equal certainty neither or both owned the land in fee simple. Westchester Fire Ins. Co. of New York v. Green, 223 Ala. 121, 134 So. 881, 884.

The question of waiver of the policy provisions in this regard by the agents issuing these policies is again argued. In this connection appellant strongly urges that the general rule which holds the principal bound only by knowledge of the agent acquired at the time, or in connection with the transaction to which the waiver relates, is inapplicable to the facts of this case.

That knowledge of the state of the title had been acquired before these policies were issued would be immaterial, if such knowledge is clearly shown to have been in mind at the time, and entered into the transaction as a factor in making the insurance contracts as they were made. Thus, if knowing the condition of the title, and proceeding to readjust the insurance, directing how it should be taken out because of such known state of the title, the case would not fall within the rule of wide application, that a principal to be constructively bound by notice or knowledge of an agent under the doctrine of respondeat superior, such notice or knowledge must be received by the agent as such; that is, while acting as agent in relation to the matter to which such notice or knowledge relates.

As noted in several of our recent decisions, fire insurance policies must, by statute, be written by agents with power to make...