Queen Ins. Co. of Liverpool v. Young

• Decision Date: 05 December 1888
• Citation: 5 So. 116,86 Ala. 424
• Parties: QUEENS INS. CO. OF LIVERPOOL v. YOUNG.
• Court: Alabama Supreme Court

5 So. 116

86 Ala. 424

QUEENS INS. CO. OF LIVERPOOL v. YOUNG.

Supreme Court of Alabama

December 5, 1888

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Action by Effie Young against the Queen Insurance Company of Liverpool upon a fire insurance policy. Judgment for plaintiff, and defendant appeals.

Tompkins, London & Troy, for appellant.

Watts & Son, for appellee.

CLOPTON J.

The action is brought by appellee on a policy insuring a stock of goods against loss or damage by fire. On the evidence, there can be no controversy as to the destruction of the goods or their value. It is only necessary to consider the questions arising on the special defenses. These are: (1) Want of insurable interest; (2) concealment of a fact material to the risk, and (3) forfeiture of the policy. The averments of the plea, setting up want of insurable interest, are-that plaintiff was a married woman, under the disabilities of coverture at the time of the issuance of the policy, and has continuously remained such; that she purchased the insured goods on a credit, for the purpose of carrying on a mercantile business, and asserts that no interest or title passed to her by the purchase, and has repudiated, and still repudiates and denies, her liability to pay for the goods. It is contended that the contract of purchase is absolutely void and inoperative to pass an insurable interest. The statutes creating the separate estates of married women, in force at the time of the issuance of the policy, having been construed not to confer capacity, nor to enlarge the common-law capacity of the wife to acquire property by purchase on credit, the character and operation of such contract of purchase must be determined by the principles of the common-law. The authorities are in conflict on the question of the wife's power to purchase on credit, when she has no separate estate which she can bind; but they hold quite uniformly that she may make a valid purchase of other property on credit, when she is possessed of a separate estate which she can charge by the contract of purchase, and such property, when purchased, becomes her separate estate. Wilder v. Abernethy, 54 Ala. 644, is not inconsistent with this doctrine. That case was a trial of the right of property between a creditor of the husband, and the wife, as claimant, in which the legal title only was involved. The goods were purchased on credit by the husband for the purpose of trade in the name of his wife, passed into and continued in his possession until they were seized by the sheriff under an execution against him, and were unpaid for at the time of the levy. It is said: "The goods having been purchased only on credit of the wife, and the contract of purchase not being a charge upon the separate estate created by the deposit by her father with her husband, (the only separate estate she is shown to have had,) no legal title to the goods passed to her." Manifestly, the decision would have been otherwise had Mrs. Abernethy possessed a separate estate on which the contract of purchase was a charge. The omission of the plea to aver that the plaintiff did not possess such separate estate is an answer to its sufficiency if there were no other.

The capacity of a married woman to purchase property on credit with the assent of her husband, though she may have no separate estate, must be regarded as settled in this state. It has been repeatedly held that at common law the wife may make, during coverture, a valid purchase on credit of real estate with the assent of the husband, or, if without his consent, subject to his disaffirmance, and if he does not dissent such purchase creates in the wife a legal or equitable interest, as may be the nature and effect of the transaction, which becomes her separate estate. Marks v. Cowles, 53 Ala. 499; Prout v. Hoge, 57 Ala. 28; Sharp v. Sharp, 76 Ala. 312. There is nothing in the character or qualities of personal property which calls for the application of a different rule. Though a married woman cannot, at common law, bind her person by a contract of purchase, if the vendor is willing to risk her voluntary payment, his transfer will be valid against all persons, unless it may be the creditors of the husband. Knapp v. Smith, 27 N.Y. 277; Kelly, Cont. Mar. Wom. 160.

The second plea avers, in addition to the foregoing facts, that the plaintiff concealed the fact of her coverture, and that the agents of defendant were forbidden to issue policies of insurance on stocks of merchandise in the hands of married women. It follows from what we have said that the coverture of plaintiff is not a fact material to the risk. The agents of defendant were apparently clothed with general powers to solicit and take applications for insurance from any and all persons. Private instructions to such agent, uncommunicated to the plaintiff, will not affect her rights. The policy of insurance contains the condition that it shall be and become void in case the assured "shall now have, or hereafter make or accept, any other insurance, whether valid or not, on any of the property above described, without the written consent of the company indorsed hereon." The evidence indisputably shows that the plaintiff subsequently accepted a valid policy of insurance on the same stock of goods from the Hibernia Insurance Company. The agent of the latter company who issued the policy was informed of the first insurance and embodied in the policy a permit for additional insurance, and informed the plaintiff that she had to give defendant notice of the second insurance. The amount due on this policy has been paid. The second insurance being valid, we are relieved of the necessity of considering the question so elaborately argued by counsel, whether accepting invalid additional insurance would avoid the contract. The court held, and properly held, that procuring additional valid insurance without the consent of defendant was a breach of the condition of the policy. Such additional insurance having been taken and accepted without notice to the...