Payne v. Eureka-Security Fire & Marine Ins. Co.

• Decision Date: 17 December 1938
• Parties: PAYNE v. EUREKA-SECURITY FIRE & MARINE INS. CO.
• Court: Tennessee Supreme Court

122 S.W.2d 431

173 Tenn. 659

PAYNE v. EUREKA-SECURITY FIRE & MARINE INS. CO.

Supreme Court of Tennessee.

December 17, 1938

Error to Circuit Court, Rhea County; L. R. Darr, Judge.

Suit by E. M. Payne against the Eureka-Security Fire & Marine Insurance Company to recover on a fire policy. From the judgment, both parties appealed to the Court of Appeals. To review a judgment of the Court of Appeals, both parties bring error.

Both writs denied.

H. J Denton and O. W. McKenzie, both of Dayton, for plaintiff in error.

Thompson & Ballard, of Chattanooga, for defendant in error.

COOK Justice.

This is a suit upon a fire insurance policy issued to E. M. Payne and wife, Juanita Payne, insuring a dwelling house for one thousand dollars and its contents for five hundred dollars. The property was destroyed by fire December 23, 1935. The policy contained this provision:

"This entire policy shall be void unless otherwise provided by agreement in writing added hereto (a) if interest of the assured be other than unconditional or sole ownership, or (b) if the subject of insurance be a building on ground not owned by the assured in fee simple."

It was shown by the declaration that the legal title to the land on which the house was situated was in Anna F. Newberry, wife of E. H. Newberry, with whom plaintiff bargained for the property but took no deed. The trial judge held the policy severable and sustained defendant's demurrer to the declaration insofar as it sought recovery for loss of the residence and overruled it as to so much of the declaration as sought recovery for the personal property. The case was tried before the judge and a jury, resulting in a verdict for plaintiff for five hundred dollars for the personal property and both parties appealed.

The Court of Appeals affirmed the trial judge in sustaining the demurrer to plaintiff's declaration seeking recovery for loss of the house and reversed the judgment awarding recovery for the household goods upon the ground that the demurrer should have been sustained in its entirety for the reason that the policy was rendered void by breach of the covenant as to sole and unconditional ownership of the property insured.

Both parties filed petitions to review the judgment of the Court of Appeals. The defendant complains of the action of the Court of Appeals in pretermitting assignments of error, among others, to action of the judge in setting aside plaintiff's non-suit. The record discloses that the judgment of dismissal was entered upon plaintiff's motion to non-suit on April 6, 1936. On May 6th, plaintiff presented to the judge at his residence in Jasper his motion to set aside the judgment entered on April 6th. He was directed by the judge to file the motion and the motion was filed with the clerk at Dayton on May 6th. The regular term at Dayton adjourned April 22nd until May 11th. In the meantime, the regular April term was opened and held in Franklin County. The motion which was filed with the clerk during the recess was taken under advisement on May 11th and the order setting aside the judgment upon the motion to non-suit was subsequently sustained. The defendant insists that thirty days expired before the trial judge took the motion under advisement and that his order setting aside the judgment of dismissal upon plaintiff's motion for non-suit was void and subsequent proceedings were coram non judice. The courts are without power to set aside judgments after the expiration of thirty days. But, if the motion is properly entered within thirty days on the motion docket, the Court may consider it after thirty days have expired. Life & Casualty Insurance Co. v. Baber, 166 Tenn. 10, 57 S.W.2d 791; Liner v. Jenkins, 170 Tenn. 1, 91 S.W.2d 289. It is doubtful if the motion entered May 6th when the court was in recess, or in session at Winchester, was effective to toll the thirty days limitation and restore jurisdiction to the trial judge as of May 11th when the court met at Dayton. However, as to that, it is not necessary to decide because the action of the Court of Appeals in holding the policy indivisible and void is determinative.

The personalty was insured as a joint property of E. M. Payne and wife, Juanita Payne. They were represented in the policy as the sole and unconditional owners of the personalty and of the real property in fee; whereas, title to the house and land was in Mrs. E. H. Newberry. The plaintiff testified that he owned all the personal property and that his wife was only interested in it juri mariti. The covenant of unconditional and sole ownership and of ownership of the real estate in fee are material to the risk, and, if false, avoid the policy. Alfred v. Insurance Co., 167 Tenn. 278, 68 S.W.2d 941. It is true that where a policy covers separate and distinct classes of...