Pope v. Glenn Falls Insurance

DOWDELL, J. — This is an action on a fire insurance policy, and the complaint is in Code form. The subsequent pleadings, consisted of pleas, replications thereto, rejoinders and surrejoinders, with the! usual accompaniment of demurrers at the different stages of the pleadings. The assignments on the rulings of the court are numerous, but only the assignments relating to the rulings on demurrer to replication numbered 5, and demur-. rer to rejoinder numbered 3, and to the giving of the affirmative charge at the request of the defendant, are insisted on in argument. To the questions raised by these assignments of error, wo confine our consideration and discussion. It is conceded that, there can be no recovery by the plaintiff, if she had no insurable interest in the property destroyed at. the time of the loss, and this as a legal propositen seems to be well settled. — Loventhal v. Bome Ins. Co., 112 Ala. 117. This defense was set up by amended plea number 3 and issue was taken on this plea. The ruling on the former appeal in this ease, Pope v. Glens Falls Ins. Co., 130 Ala. 356, 30 So. Rep. 496, was to the effect that the breach of the conditions pleaded in pleas numbered 6 and 7, would defeat a recovery unless the agent who issued the policy was informed of the truth’ as to the title at the time the policy was issued. Upon the second trial, the plaintiff sought to meet the defenses set up in these pleas, by averments in replication 5, that the defendant’s agent “ought to have known, full well, the [675] true condition, character and nature of plaintiff’s title and ownership of said property.” etc. without averring any duty on him to obtain such knowledge; and in the absence of averment showing a duty resting upon the agent to the insured, we know of no law making it incumbent on the agent to make voluntary search of the title when its condition is not, in any way called to' his attention. 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. lie joinder number 3 to replications 2 and 4, set up that plaintiff’s interest when the policy was issued was the statutory right to redeem from a foreclosure sale under a deed of trust, which statutory right had expired’ before the loss by .free occurred. The only Insistence is, that the rejoinder set up matter already raised by other issues made in the case, and for that reason ought to have been stricken. If its only effect was to make an issue already made1., iu> injury could possibly result to tbe plaintiff in overruling the demurrer — if error, it was error without injury, and would therefore furnish no ■ground for reversal. The issues made up, were framed on first, second and third pleas, replications two and four to pleas six and seven, rejoinder number three to replications two and four, and surrejoinders. The replies to, pleas six and seven were by way of confession and avoidance. The breach of conditions as alleged in these was not denied, but to avoid the legal effect of such breach, new matter was set up' in the replication to effect “that the agent was fully advised of plaintiff’s interest in said property, etc., and knew the nature, kind and character of plaintiff’s possession, ownership and interest in the same, and with such knowledge, and knowing of the time state of her title, issued said policy to plaintiff,” etc. The only evidence offered in support of this allegation, was the testimony of plaintiff, and her statement was, that she informed the agent that the Southern Building & Loan Association had a mortgage on the property, when as a [676] matter of fact, at the time of her statement, the mortgage had already been foreclosed, and the Building & Loan Association was the owner of the property, and the plaintiff was merely its tenant. The allegations were wholly unsupported by the proof. The averments of tha pleas being confessed, and the matter pleaded in avoidance not being supported by any proof, the affirmative charge requested by the defendant was properly given. Under the evidence 'the plaintiff had no- insurable interest in the property at -the time of the fire, and for this reason the affirmative charge was properly given for defendant as requested. All 'that can be made of the evidence in regard to the insurable interest claimed by the plaintiff is, that the secretary of the Building & Loan Association expressed a willingness to accept the debt due, notwithstanding the time for redemption had expired. This was no contract that the plaintiff could have enforced at law or in equity against the association. It was without consideration and rested in parol. It was void under the statute of frauds. A person can have no insurable interest where his only right arises under a contract, which is void, or unenforceable, either at law or in equity. — 2 Joyce on Ins. § 892. See Essex Savings Bank v. Meriden Ins. Co., 4 L. R. A. 759. In what we have said above, we are not to -be understood as intimating that a statutory right of redemption Avould constitute an insurable interest. This question is- not involved, and we, therefore, do not decide it. Affirmed.