Heyl v. Aetna Insurance

144 Ala. 549 | Ala. | 1905

TYSON, J.

The provision of the policy sued on under uddch the plaintig, Heyl, predicates his right to recover is in this language: “It is agreed that any loss or damage ascertained and proved to be due the assured under this policy shall be held payable to James H. Heyl, as his interest may appear.”

Confessedly if the assured, Morrow, by his conduct, forfeited his right to recover on this policy the plaintiff cannot do so. For it is clear, from the language quoted, that it is only such damages as are due to Morrow” that are payable to plaintiff. In other words, if nothing is due Morrow, there could be nothing payable to plaintiff.

The policy also contains the condition that “this entire policy unless otherwise provided by agreement endorsed thereon or added thereto' shall be void if the assured now7 has or shall hereafter make or purchase any other contract of insurance, whether void or not, on property covered in whole or in part by this policy.”

It is shown by the record .that, without the consent •of defendant, while this policy was in force, Morrow procured other insurance on the property in the Home Insurance Company of New York, which policy was in force at the time the property was destroyed. This undoubtedly avoided the policy sued on, unless the defendant waived the right to claim the forfeiture, which is not shown. — Queen Insurance Co. v. Young, 86 Ala. 424.

It may not be amiss to say that the cases relied on by appellant’s counsel holding that where the policy is payable to a mortgagee as his interest may appear, that he is the assured to the extent of his mortgage debt, have no application to this case.

Affirmed.

Haralson, Dowdell and Denson, JJ., concur.