90 Ala. 386 | Ala. | 1890
Defendant, the Phoenix Insurance Company, issued the policy, on which this action is founded, to Mrs. Dora Roberts, February 1, 1887, and thereby insured against loss or damage by fire a building occupied by her as a residence. Defendant objected to the introduction in evidence of the transfer of the policy, by virtue of which plaintiff claims the right to sue thereon in his own name. It, may be conceded, that the assignment of the policy to plaintiff, not having been signed by Mrs. Roberts, did not, under section 2348 of the Code, operate to pass the title to plaintiff, so as to authorize him to sue thereon in his own name; but, not having-been impeached by plea, verified by affidavit, it must be deemed genuine. — Code, § 2770.
When this case was before the court at a previous term (86 Ala. 551), all the material and controlling questions now involved, exclusive of the rulings in relation to the admission and exclusion of evidence, with probably two exceptions, were considered and decided. It was ruled, that there was no available error in the rulings on demurrer to the pleadings as they then stood, on the ground that the defendant had the benefit, under the pleas to which demurrers were overruled, of any defense which could have been had under those to which demurrers were sustained. The same observation applies to the pleadings as they now stand; we shall, therefore, not consider the propriety of the court’s rulings on the several demurrers.
The policy contained a stipulation that it should be void, “if the property hereby insured, or any part thereof, is mortgaged, or otherwise incumbered, either prior or subsequent to date hereof, without consent of the company written thereon.” The issuance of the policy, the destruction of the property, and its value being undisputed, and there being m> controversy as to the existence of three mortgages on the property prior to and at the time of the issuance of the policy — ■ two executed by plaintiff himself to the New England Mortgage Security Company and B. K. Collier, respectively, and the third by Mrs. Roberts and her husband to plaintiff, from whom she purchased the property, to secure the purchase-money — the first controverted issue involves the information alleged to have been communicated to Jackson, the agent of the defendant, of the mortgages, while acting in the scope of his agency. There being evidence tending to show that Roberts, who represented his wife in obtaining the insurance, exhibited to Jackson an unsigned mortgage, showing the nature and extent of the incumbrances, the court substantially instructed the jury that, if this were true, Jackson was charged,
The policy contained also a stipulation that it should be void, “if the assured shall have, or shall hereafter make, any other insurance (whether valid or not) on the property, without the consent of the company written hereon. ” It is uncontroverted, that at the time of the issuance of the policy there was other insurance on the property to the amount of eight hundred dollars, issued by the Central City Fire Insurance Company. The evidence shows that this insurance was for, and enured to the benefit of Mrs. Roberts, though taken in the name oí' plaintiff, and the loss, if any, payable to the New England Mortgage Security Company.—Holbrook v. Am. Ins. Co., 1 Curtis, 193. The policy contained a stipulation, that it sligll bo void if the property was sold or transferred, or if any change took place in the title or possession without the consent of the company indorsed thereon. It appearing that the property was sold and transferred, the court instructed the jury, that by its terms and conditions the policy became void when plaintiff transferred the jnoperty to Mrs. Roberts, unless by negotiation she was jdaced in the stead of plaintiff, and the company recognized its obligation to her, or to another for her, in case of loss ; and if there had been no such negotiation before the policy sued on was issued, the first policy wras void, and there was no double insurance. Charges requested by defendant, asserting the converse proposition, were refused.
There are many authorities, especial^ in Massachusetts, Virginia, Ohio, Missouri, and other States, which hold that, when the condition in respect to further insurance is general, without qualifying words, only valuable and enforceable insurance is brought within the operation of the condition. There are also cases, notably Gee v. Insurance Co., 55 N. H. 65, which hold, that when the words, whether valid or not, are employed, the condition is inconsistent with the scope and effect of the contract, and is void. There are other cases which hold, that when these words are employed, ■ other insurance, whether prior or subsequent, is within the prohibition against further
There are some errors in the rulings of the court on the admission and exclusion of evidence unnecessary to consider. They may be avoided on another trial by admitting only such evidence as is relevant to the really controverted issues.
Reversed and remanded.