Aetna Fire Ins. v. Kennedy, 50 So. 73

Aetna Fire Ins. v. Kennedy

50 So. 73 | Ala. | 1909

SIMPSON, J.

This action was brought by the appellee against the appellant on a fire insurance policy issued by the appellant. The first assignment of error insisted on is to the action of the court in overruling defendant’s demurrer to the fifth replication to plea 2 to the complaint. The substance of plea 2 is that the plaintiff, at the time of the issuance of the policy, was not the owner of the property insured, and the replication is that he was the OAvner of stock in the company which owned the property, worth more than double the value of the policy, that said fact was known to the general agent of the company who issued the policy, and he expressly waived the matter of the want of sole and unconditional ownership. It has been expressly held that a stockholder in a corporation has an insurable interest *605in the property of the corporation, which will sustain a recovery on a policy issued to him on the property. — 19 Cyc. 589; Warren v. Davenport F. Ins. Co., 31 Iowa 464, 7 Am. Rep. 160; Philips v. Knox Co. Mut. Ins. Co., 20 Ohio, 174; Sweeny v. Franklin F. Ins. Co., 20 Pa. 337; Riggs v. Com. Mut. Ins. Co., 125 N. Y. 7, 25 N. E. 1058, 1060, 10 L. R. A. 864, 21 Am. St. Rep. 716. Our own court- has held that an agent with authority to write insurance, etc., may waive a condition in the policy.— Continental Fire Ins. Co. v. Brooks, 131 Ala. 614, 30 South. 876, and cases cited; Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 190, 16 South. 46; Western Assurance Co. v. Stoddard, 88 Ala. 606, 611, 7 South. 379. The case of Cassimus Bros. v. Scottish U. Ins. Co., 135 Ala. 258, 270, 33 South. 163, refers only to a notice to the agent subsequent to the issuance of the policy.

There was no error in overruling the demurrer to the sixth replication. The theory upon which it is held that a stockholder may recover on a policy of insurance on the property of the corporation is that he has an equitable interest in the property. It is evident, however, that his interest is not necessarily measured by the value of the property destroyed, for the reason that the property of the corporation is liable first for the debts of the corporation, and the only interest held by the stockholder is a right to his share in the distribution of the proceeds after the payment of the debts of the corporation.

The burden is on the plaintiff, in a suit on an insurance policy, to show the value of his interest in the property' destroyed, and unless he produce evidence from which the jury can ascertain the value of his interest he is not entitled to recover more than nominal damages. In this case, the only evidence of the value of his interest is that the property destroyed was worth between $5,000 and $6,000; that it belonged to the Union Pub*606lishing Company; that the plaintiff owned stock of the par value of $8,500, while $380 of stock was owned by other parties; also that the Union Publishing Company did not hold the legal title to the entire property, but said title to a portion of the property was retained by the Dodson Printers’ Supply Company, from whom it had been purchased, upon which there was still due $750; also that there was a lien on the property in favor of Mrs. E. F. Gross for $432. Although this evidence did not furnish sufficient data from which to ascertain the exact amount of plaintiff’s interest, yet it was enough to afford an inference that plaintiff had some interest, and the court properly refused the general charge requested by the defendant..

There was no reversible error--in the refusal to give charge 20, requested by the defendant. This court has frequently held that the tria-l court -is not under any duty to give a charge that there is no evidence of a certain fact.

The court erred in overruling .the-demurrer to the second replication. Said replication does not allege actual knowledge on the part of the defendant’s agent, or notice of the alleged breach of the conditions.— Pope v. Glenn Falls Ins. Co., 136 Ala. 670, 674, 675, 34 South. 29, 30. According to the case just cited, “the doctrine .of implied knowledge from mere notice of facts which, if diligently inquired into and prosecuted, would lead to knowledge, is without application in a- case like the one before us.” Hence the court erred in overruling the objections to the questions to the plaintiff as a witness, as to whether- defendant’s agent was a. subscriber to the newspaper, and as to whether he bought supplies from the Union Supply Company.

The court erred in overruling the objection to the question to the plaintiff as a witness as'to whether-de*607fendant’s agent was ever in the office of the Union Publishing Company when the gasoline engine was running. Notice to the soliciting agent, after the policy has been issued, it not notice to the company.- — Queen Ins. Co. v. Young, 86 Ala. 431, 5 South. 116, 11 Am. St. Rep. 51; Cassimus Bros. v. Scottish U. Ins. Co., 135 Ala. 270, 33 South. 163.

For the same reasons it was error to admit the testimony of the witness Gross as to his turning over the mortgage notes to said Rorex (defendant’s agent), as cashier of the bank.

The second count was demurred to, and also the general charge was asked, in order to raise the question of the constitutionality of section 4594 of the Code of 1907. The constitutionality of that section has been sustained by this court. — Continental Ins. Co. v. Parkes, 142 Ala. 650, 658, 659, 39 South. 204. We see no reason for departing from that decision, and the action of the court in overruling the demurrer and refusing the general charge as to the second count was without error.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Dowdell., C. J., and Denson and Mayfield, JJ., concur.