Royal Exch. Assur. of London, Eng., v. Almon

• Decision Date: 07 April 1921
• Docket Number: 8 Div. 256
• Citation: 206 Ala. 45,89 So. 76
• Parties: ROYAL EXCH. ASSUR. OF LONDON, ENG., v. ALMON.
• Court: Alabama Supreme Court

89 So. 76

206 Ala. 45

ROYAL EXCH. ASSUR. OF LONDON, ENG., v. ALMON.

8 Div. 256

Supreme Court of Alabama

April 7, 1921

Rehearing Denied May 12, 1921

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Action by John Almon against the Royal Exchange Assurance of London England, on a fire insurance policy. Judgment for plaintiff and defendant appeals. Reversed and remanded.

S.A Lynne, of Decatur, for appellant.

Callahan & Harris, of Decatur, for appellee.

MILLER J.

This is a suit on a fire insurance policy for loss by fire of a barn, corn, hay, peas, and farm and garden tools. The complaint follows substantially form 13 on page 1196 of the Code of 1907.

This is the second appeal to this court. The former is reported in 202 Ala. 374, 80 So. 456.

The court sustained demurrers of plaintiff to plea No. 9. Its meaning is not clear and certain. It does not aver, if fire occurred, notice in writing of loss signed and sworn to must be, and was not, given the company by the insured within 60 days thereafter. It does not declare what the policy required the insured to do after loss by fire and what the written notice must contain. It fails to aver an express contract of forfeiture in the policy for failing to give written notice of loss by fire within 60 days after it occurs. Section 5330, Code 1907; Pom. on Contracts, § 392; Taber v. Royal Ins. Co., 124 Ala. 681, 26 So. 252; Home Ins. Co. v. Adler, 71 Ala. 516.

The pleas of defendant numbered 5, 6, 7, 8, 10, and 12 alleged facts in defense to recovery for the barn to the effect: That the policy sued on contained this condition, subject to which it was issued by defendant, and accepted by plaintiff, viz. "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void *** if subject of insurance be a building on ground not owned by the insured in fee simple;" that said barn insured was, at the time of the issuance of said policy and at the time of the fire, on ground not owned by and it was not owned by the insured (the plaintiff) in fee simple, and it was not provided by agreement indorsed upon or added to said policy of insurance that same should not be void by reason thereof; and that the barn was insured separately, and the insurance contract was divisible.

The plaintiff replies specially to these six pleas. One is numbered 2. It is addressed to all of them. The other is lettered A. It is addressed to only three of them, 7, 8, and 12. Replication 1 is to this effect: The plaintiff was in possession of the barn, one of the agents of defendant who issued the policy, and before issuing it examined the barn and its contents, and before the contract of insurance was made and executed plaintiff explained to the agent that the barn was on land that was under mortgage; that it was purchased in the name of plaintiff's wife; that the personal property insured was his property, and he asked this agent of defendant if it would be necessary to insure the property in two policies, and the agent said it would not, and following said conversation the policy of insurance was issued, and "plaintiff was at that time and at the time of the issuance of the policy and making the contract sued on and at the time of the fire in possession of all of said property." Replication A contained the foregoing averments in replication No. 1, and the following additional allegations:

"At the time of the issuance of the policy plaintiff was using the said barn to house and store his farming implements and farm products raised by him that year on the farm on which the barn was located, which was with the assent and concurrence of his wife, the owner of the farm, and he was in possession of the barn at that time, with an agreement with his wife that he was to pay the purchase money for the farm on which the barn was situated, and in the meantime should use it for carrying on his farming operations; and the full purchase price for said farm did not mature until, to wit, 1920. Wyatt at that time knew that plaintiff was in possession of and working said farm."

The legal title to the barn, and the ground on which it was erected, was in the wife of plaintiff. Under section 209 of the Constitution it was the separate estate and property of plaintiff's wife, not liable for any debts, obligations, or engagements of plaintiff, her husband. It may be devised or bequeathed by her, the same as if she were a feme sole. It can be willed by her without her husband's consent, but it cannot be conveyed by her without his consent. She must sue in her name for the recovery of her separate property, for injuries to it, for its rents, income, or profits. When insured, it should be in her name. Sections 4493 and 4494 of Code 1907.

Section 4544 of the Code of 1907 defines a contract of insurance. It is as follows:

"A contract of insurance is an agreement, expressed or implied, by which one party, for a consideration, promises to pay money, or its equivalent, or to do some act of value to the assured, upon the destruction or injury of something in which the other party has an insurable interest."

Did the plaintiff have an insurable interest in the barn? If not then the policy would be void as to the barn; it being repugnant to public policy to allow one person to insure the property of another for his benefit. If he has no interest in the property insured, there would be a temptation to...