Pope v. Glens Falls Ins. Co.

• Decision Date: 14 June 1901
• Citation: 130 Ala. 356,30 So. 496
• Court: Alabama Supreme Court
• Parties: POPE v. GLENS FALLS INS. CO.

30 So. 496

130 Ala. 356

POPE v. GLENS FALLS INS. CO.

Supreme Court of Alabama

June 14, 1901

Appeal from circuit court, Madison county; H. C. Speake, Judge.

Action by Lucy D. Pope against the Glens Falls Insurance Company. From a judgment for defendant, plaintiff appeals. Reversed.

S. S Pleasants and Douglass Taylor, for appellant.

R. W Walker, for appellee.

HARALSON J.

The action is on a fire insurance policy, the complaint being in Code form.

The defendant filed a number of special pleas, averring in substance, that contrary to the terms and conditions of the policy sued on, plaintiff concealed the fact that the property was not hers; that her interest in the same was not truly stated; that her interest was not the sole and unconditional ownership, and that the subject of insurance was a building on ground not owned by the insured in fee simple.

To these several pleas, plaintiff replied in substance, that one Joseph E. Cooper was the agent of defendant; that as such agent he countersigned said policy of insurance and issued it or procured its issuance to plaintiff; that before and at the time of the issuance of said policy, the plaintiff fully advised said Cooper as such agent, and fully disclosed to him the character, nature and condition and true state of her possession, title and ownership of the said property covered by said policy of insurance, and with full knowledge of the true condition of plaintiff's possession, ownership and title, issued to plaintiff the said policy, accepted the premium thereon, and delivered the same to plaintiff.

The defendant answered by rejoinder, in which it was averred that the policy contained a provision that this policy is made and accepted subject to the provision, that "no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions, no officer, agent or representative shall have such power or be deemed to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached"; and it is averred, that this provision of the policy was not complied with, "and that no waiver of either of said provisions or conditions of said policy is in any manner shown thereon or provided for therein."

A demurrer by plaintiff to this rejoinder was overruled. The plaintiff declined to plead further, and judgment was rendered for the defendant. The pleadings do not inform us what interest the plaintiff had in the subject-matter of the insurance. They only refer to the interest the plaintiff did not have.

The form prescribed by the Code, does not, in words, contain any averment of the ownership of or the insurable interest the plaintiff has in the insured property; but it must be inferred that the allegation of the contract, or the issuance of the policy is tantamount to an averment that the insured had an insurable interest. Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320, 8 So. 222, 60 Am. Rep. 162. It must be assumed, therefore, that the plaintiff had an insurable interest, but it may be, it was not of the nature required by the terms of the policy as stated in the several pleas.

The proposition has been frequently announced by this court, that when the insured in contracting for insurance, fully informs an authorized agent of the insurer, of the true state of his title to or interest in the property upon which insurance is desired, and with such knowledge the policy is issued, the insurer cannot...