Opinion
6 Div. 896.
January 21, 1932.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Coleman, Coleman, Spain Stewart, of Birmingham, for appellant.
Wherever some other person than the assured brings a suit on an insurance policy, the complaint must set up facts showing the contract and how and on what right the plaintiff is entitled to sue. Amer. Eq. Assur. Co. v. Powderly Coal Lbr. Co., 221 Ala. 280, 128 So. 225; Prine v. Amer. Cent. Ins. Co., 171 Ala. 343, 54 So. 547; Sloss-S. S. I. Co. v. Payne, 192 Ala. 69, 68 So. 359; Cont. Ins. Co. v. Parkes, 142 Ala. 650, 39 So. 204; Feibelman v. Manchester F. A. Co., 108 Ala. 180, 19 So. 540; Tarrant Land Co. v. Palmetto F. I. Co., 220 Ala. 428, 125 So. 807. The standard mortgage clause, when attached to an insurance policy, does not create an independent contract between the company issuing the policy and the mortgagee. Walker v. Queen Ins. Co., 136 S.C. 144, 134 S.E. 263, 52 A.L.R. 259; Aetna Ins. Co. v. Cowan, 111 Miss. 453, 71 So. 746; Erie Brewg. Co. v. Ohio F. I. Co., 81 Ohio St. 1, 89 N.E. 1065, 25 L.R.A. (N.S.) 742, 135 Am. St. Rep. 735, 18 Ann. Cas. 265; Glens Falls Ins. Co. v. Porter, 44 Fla. 568, 33 So. 473; Jaskulski v. Cit. Mut. F. I. Co., 131 Mich. 603, 92 N.W. 98; Collinsville S. Soc. v. Boston Ins. Co., 77 Conn. 676, 60 A. 647, 69 L.R.A. 924. A fire insurance policy issued upon houses located on property of which the assured is not the owner in fee simple or is not the unconditional and sole owner is void. And no right of action exists in favor of a mortgagee under a standard mortgage clause where the policy to which it is attached never had any validity and was void at the time of its issuance. 26 C. J. 170; Pelican Ins. Co. v. Smith, 92 Ala. 428, 9 So. 327; Id., 107 Ala. 313, 18 So. 105; New Brunswick F. I. Co. v. Nichols, 210 Ala. 63, 97 So. 82; Western Assur. Co. v. Stoddard, 88 Ala. 606, 7 So. 379; Home L. F. Co. v. Fireman's Fund, 221 Ala. 529, 129 So. 470. No person having a pecuniary interest in the result of a pending suit is competent to testify as to any transaction with or statement by a deceased person who at the time of such transaction or statement acted in a representative or fiduciary relation to the party against whom such testimony is sought to be introduced. Code 1923, § 7721.
Benners, Burr, McKamy Forman, of Birmingham, for appellee.
The general agent had authority to bind the defendant by waiver or estoppel as to all matters set up in defendant's pleas, excepting only a lack on the part of plaintiff of an insurable interest in the property covered by the policy. Yorkshire Ins. Co. v. Gazis, 219 Ala. 96, 121 So. 84; Amer. Ins. Co. v. Inzer, 216 Ala. 553, 114 So. 187; Green v. Westchester F. I. Co., 221 Ala. 345, 128 So. 436. Plaintiff, as mortgagee, had an insurable interest. Amer. Ins. Co. v. Inzer, supra; Amer. Ins. Co. v. Newberry, 215 Ala. 587, 112 So. 195. Where the insurance company has, with knowledge of the nature of the interest of the insured, recognized such interest as sufficient to support a policy, it is estopped to question the sufficiency of such interest. 26 Cyc. 36; 14 R. C. L. 1166; Amer. Ins. Co. v. Newberry, supra; Amer. Eq. Assur. Co. v. Powderly C. L. Co., 221 Ala. 280, 128 So. 225; Green v. Westchester F. I. Co., supra; Western Assur. Co. v. Stoddard, 88 Ala. 606, 7 So. 379; Firemen's I. Co. v. Brooks (C.C.A.) 32 F.(2d) 451, 65 A.L.R. 913. Defendant's agent having declined to furnish forms for proof of loss, having investigated the fire, and having definitely declined to pay on the claim that the policy was void, the provisions of the policy relative to furnishing proof of loss were waived. Ray v. Fidelity-Phœnix F. I. Co., 187 Ala. 91, 65 So. 536; Firemen's I. Co. v. Brooks, supra; Georgia Home Ins. Co. v. Allen, 128 Ala. 451, 30 So. 537.
Demurrer to count 2, upon which the case was tried, was properly overruled. It sufficiently discloses in whose name the policy was issued, and the right of plaintiff to sue thereon. Prine v. American Cent. Ins. Co., 171 Ala. 343, 54 So. 547; American Equitable Assur. Co. v. Powderly Coal Lbr. Co., 221 Ala. 280, 128 So. 225.
Upon the merits, the theory of defendant is that recovery should be denied for the reason that Bailey and Cummings had, previous to the issuance of the policy sued upon, sold and conveyed the property, and therefore the express provisions of the policy as to the insured being the sole and unconditional owner had been breached, and the policy avoided, citing, among other authorities, 26 C. J. 170; Pelican Ins. Co. v. Smith, 92 Ala. 428, 9 So. 327; New Brunswick Fire Ins. Co. v. Nichols, 210 Ala. 63, 97 So. 82; Western Assurance Co. v. Stoddard, 88 Ala. 606, 7 So. 379; Home Loan Finance Co. v. Fireman's Fund Ins. Co., 221 Ala. 529, 129 So. 470; Walker v. Queen Ins. Co., 136 S.C. 144, 134 S.E. 263, 52 A.L.R. 259.
The proof discloses that, at the time of the issuance of the policy, Bailey and Cummings had parted with the title, but plaintiff was the owner of the mortgage executed by them to their vendor, the Ensley Land Company, and had no direct knowledge of such sale when application was made by it to the general agent of defendant for the policy sued on for the express purpose of protecting its interest as mortgagee. To such defense, therefore, plaintiff replied, and sustained its replications by the proof that when the policy was issued defendant's general agent was informed of plaintiff's interest, and that it was that interest only upon which protection was sought; that the mortgagors were Bailey and Cummings; but whether they still owned the property plaintiff did not know, though it had been casually reported they may have conveyed the same, and the agent's advice was asked as to the manner in which the policy should be issued; that the agent stated under the circumstances it would be proper to write the insurance in the name of Bailey and Cummings as owners, with a mortgage clause to plaintiff, and the policy was issued in its present form at the suggestion of defendant's general agent; and that the validity of the policy was in no way questioned until after the loss by fire. That plaintiff had an insurable interest in the property, and that defendant's general agent had authority to bind the defendant by waiver or estoppel, is well settled (American Ins. Co. v. Inzer, 216 Ala. 553, 114 So. 187; Yorkshire Ins. Co. v. Gazis, 219 Ala. 96, 121 So. 84; Green v. Westchester Fire Ins. Co., 221 Ala. 345, 128 So. 436; Amer. Ins. Co. v. Newberry, 215 Ala. 587, 112 So. 195), and that the conduct of such agent, as above outlined, sufficed to create an estoppel would appear to require no discussion. American Equitable Assurance Co. v. Powderly Coal Lumber Co., 221 Ala. 280, 128 So. 225; American Ins. Co. v. Newberry, supra; Westchester Fire Ins. Co. v. Green, 223 Ala. 121, 134 So. 881; Firemen's Ins. Co. v. Brooks (C.C.A.) 32 F.2d 451, 65 A.L.R. 909.
The cases relied upon by defendant involve no such question as here presented, and in no manner militate against the conclusion here reached.
The case was properly submitted to the jury, and there was no error in the refusal or the affirmative charge at defendant's request.
Proof of loss as prescribed by the policy was not furnished, and plaintiff insists upon a waiver thereof in answer to this defense. Request was made to the general agent on two separate occasions for blank forms for the purpose, but without avail. The two houses were totally destroyed, and were inspected by the defendant's adjuster. The proof also tends to show that after the fire defendant tendered to plaintiff's agent the premium which had been paid upon the ground that the policy was void. The evidence was sufficient for submission of the question of waiver for the jury's consideration. Ray v. Fid.-P. Fire Ins. Co., 187 Ala. 91, 65 So. 536; Indemnity Co. of America v. Pugh, 222 Ala. 251, 132 So. 165; Georgia Home Ins. Co. v. Allen, 128 Ala. 451, 30 So. 537.
It is argued that the evidence as to the conversation between plaintiff's agent and the adjuster was inadmissible as violative of section 7721, Code 1923. The argument is based upon the assumption that the adjuster is dead; but we find no evidence in the record justifying such conclusion, and, of course, under these circumstances, the objection must be held to be without foundation. Moreover, the plea appears to be one in abatement only, and, pleaded simultaneously with pleas in bar, may be treated by plaintiff as a nullity, under the authority of Westchester Fire Ins. Co. v. Green, 223 Ala. 121, 134 So. 881, and cases therein cited.
The houses insured were designated in the policy by numbers (as No. 905-7, 909-11, etc.) located on the east side of Avenue H, lots 1 to 8, inclusive, in block 9-H, Ensley, Ala.; the two houses destroyed by fire being located on lots 6 and 7 in block 9-H. The fact therefore there was an error in the further description as in the third rather than the sixth Ensley Land Company addition does not affect the question of recovery; the property being otherwise sufficiently identified in the policy, and clearly designated by the proof. The proof was so clearly sufficient to show an equitable title to the mortgage in the plaintiff, and an insurable interest in the property (American Ins. Co. v. Inzer, supra) as to require no discussion.
What has been said will suffice as an answer to the several assignments of error argued, without separate treatment of each.
We find no error to reverse, and the judgment will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.