Phoenix Ins. Co. v. Copeland
| Decision Date | 12 June 1890 |
| Citation | 90 Ala. 386,8 So. 48 |
| Parties | PH NIX INS. CO. v. COPELAND. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Chambers county; W. L. HOOD, Judge.
Tompkins & Troy, for appellant.
J M. Chilton, for appellee.
Defendant the Ph nix Insurance Company, issued the policy on which the action is founded, to Mrs. Dora Roberts, February 1, 1887 and thereby insured against loss or damage by fire a building occupied by her as a residence. Defendant objected to the introduction in evidence of the transfer of the policy by virtue of which plaintiff claims the right to sue thereon in his own name. It may be conceded that the assignment of the policy to plaintiff, not having been signed by Mrs. Roberts, did not, under section 2348 of the Code, operate to pass the title to plaintiff so as to authorize him to sue thereon in his own name, but, not having been impeached by plea, and being verified by affidavit, it must be deemed genuine.
Code, § 2770. When this case was before the court at a previous term, (86 Ala. 551, 6 South. Rep. 143,) all the material and controlling questions now involved, exclusive of the rulings in relation to the admission and exclusion of evidence, with probably two exceptions, were considered and decided. It was ruled that there was no available error in the rulings on demurrer to the pleadings as they then stood, on the ground that the defendant had the benefit, under the pleas to which demurrers were overruled, of any defense which could have been had under those to which demurrers were sustained. The same observation applies to the pleadings as they now stand. We shall, therefore, not consider the propriety of the court's rulings on the several demurrers.
The policy contained a stipulation that it should be void "if the property hereby insured, or any part thereof, is mortgaged, or otherwise incumbered, either prior or subsequent to date hereof, without consent of the company written thereon." The issuance of the policy, the destruction of the property, and its value, being undisputed, and there being no controversy as to the existence of three mortgages on the property prior to and at the time of the issuance of the policy, (two executed by plaintiff himself to the New England Mortgage Security Company and B. K. Collier, respectively, and the third by Mrs. Roberts and her husband to plaintiff, from whom she purchased the property, to secure the purchase money,) the first controverted issue involves the information alleged to have been communicated to Jackson, the agent of the defendant, of the mortgages, while acting in the scope of his agency. There being evidence tending to show that Roberts, who represented his wife in obtaining the insurance, exhibited to Jackson an unsigned mortgage, showing the nature and extent of the incumbrances, the court substantially instructed the jury that, if this be true, Jackson was charged, and through him the company, with notice of the mortgages. The principle underlying the charge was virtually announced on the former appeal. In passing upon plaintiff's replication, averring the fact that Roberts laid before Jackson papers showing the nature and extent of the incumbrances resting on the property, it was said: "This, if true, brought home to Jackson's knowledge the true condition of the title, contemporaneously with the acts done by him in placing the insurance." The charges in respect to this matter, given at the request of the plaintiff, are free from error.
The policy contained also a stipulation that it should be void "if the assured shall have, or shall hereafter make, any other insurance [whether valid or not] on the property without the consent of the company written hereon." It is uncontroverted that at the time of the issuance of the policy there was other insurance on the property to the amount of $800, issued by the Central City Fire Insurance Company. The evidence shows that this insurance was for and inured to the benefit of Mrs. Roberts, though taken in the name of plaintiff, and the loss, if any, payable to the New England Mortgage Security Company. Holbrook v Insurance Co., 1 Curt. 193. The policy contains a stipulation that it shall be void if the property was sold or transferred, or any change took place in the...
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