133 S.W.2d 456 | Tenn. | 1939
This cause was disposed of by the opinion published in
We have reconsidered the questions disposed of in the published opinion and also questions presented by assignments of error, brief, and argument of counsel. Many of the assignments of error are without merit and for that reason are not here discussed. We confine ourselves to a discussion of determinative propositions and to plaintiff's pretermitted assignment of error in the Court of Appeals. That assignment was directed to the action of the trial judge in refusing to allow an amendment to the declaration charging that the insurance company is estopped from relying on the forfeiture for lack of sole and unconditional ownership in the insured, because the company's agents had knowledge of the alleged defect of title when the policy was issued. We have examined the record and find that this motion was made under circumstances that authorized the trial judge to exercise discretion, and that in refusing to allow the amendment the judge exercised reasonable discretion and for that reason committed no reversible error.
In the published opinion we concurred with the Court of Appeals in dismissing the action. The plaintiff had no title to the land on which the house insured by the policy stood. The policy covered both the house and contents. Because the risk on the contents would have been directly affected by any acts that could have affected the risk on the building, it was held that there could be no recovery for the contents. See 26 C.J., p. 192, paragraph 235, note 85, and 26 C.J., p. 101, section 100. In the opinion, we recognized the rule of divisibility in a policy that covers separate classes of property separately valued, but held that the rule of divisibility could not be extended to cases where the property was so situated that the risk on the personalty was inherent in the risk on the realty. Here the house covered by the policy *136 issued to Payne and wife was located on land owned by Mrs. Anna F. Newberry. The title was not in either Payne or his wife. Personalty insured by the policy on the house was insured as the joint property of Payne and wife. They were represented in the policy as the sole and unconditional owners of both the real estate and the personal property. The plaintiff testified that he owned the personal property and that his wife's only interest was by virtue of her marital rights. The wife did not join in the action to recover on the policy. The explanation of that in the trial court was that the husband and wife had separated, the wife was hostile and refused to join her husband in the assertion of his rights. We did not discuss that fact in the opinion and discussion of it is not required here. The assurance of unconditional and sole ownership of the real estate was material to the risk and, if the insured was not the owner and if the condition was broken, the policy would be void because it was so provided in the policy, and such provisions have been uniformly sustained by decisions of this Court. The risk on the personal property which was also included in the covenant of unconditional and sole ownership inhered in the risk on the house. Loss of the house would involve destruction or injury to the contents, and for that reason, as shown in the published opinion, we said the policy was not severable. That was probably an inaccurate term; we should have said the risk was not severable, for we recognized in the opinion the rule of severability in policies covering separate items separately valued and where the breach of the condition as to one part could not be related to and affect the risk on the other part.
Referring to Light v. Insurance Co.,
Upon rehearing, we find no reason to reverse the conclusion reached in the former opinion. The judgment of the Court of Appeals is affirmed. *138