Bozeman v. Sun Insurance

ANDERSON, J. Pleading, in equity as Avell as law, must he construed against the pleader, on demurrer, in case of ambiguity or uncertainty. The bill in question does not aver that the policy Avas assigned or transferred, legally or equitably, to the complainant. It says, both before and after amendment, “that, when said Roper conveyed said property to your orator, he also relinquished all interest in said policy.” It does not therefore appear, except by inference, that the relinquishment Avas in favor of the complainant, and it may have been in favor of the company. The bill does subsequently set up ownership of the policy in complainant, but does not show just how he acquired title to said policy, and the averment of ownership is a mere conclusion. On the other hand, if we concede that the [378] bill sets up an assignment of tbe policy, before tbe fire, from Roper to tbe complainant, it shows that tbe respondents refused to allow orator a credit on tbe mortgage for tbe. amount of tbe policy, because tbe policy was not valid and in force at tbe time of tbe fire, as to said complainant, in that tbe company bad not consented in writing to tbe transfer of said policy. Tbe bill does not aver that there was no clause prohibiting a transfer except by tbe written consent of tbe company, but merely sets up as a legal conclusion that tbe policy is a valid and subsisting one in favor of tbe complainant. Therefore, construing the bill against tbe pleader, in dealing with the demurrers we must assume that tbe policy contained a clause against a transfer without tbe written consent of tbe company and providing a forfeiture because of same. While such stipulations should be strictly construed as against a forfeiture, yet they will be upheld by tbe courts when they clearly and plainly exist.—13 Am. & Eng. Ency. of Law, 185, and cases cited in note 7; 19 Cyc. 636. We have been cited to certain authorities, in effect, holding that a temporary alienation of tbe property insured will not avoid tbe policy, if reconveyed to tbe proper party under tbe policy contract before tbe loss.—German Ins. Co. v. Food, 4 Neb. (Unof.) 833, 96 N. W. 652, 63 L. R. A. 334; Wolfe v. Security Ins. Co., 39 N. Y. 49; Cooley’s Briefs on Insurance, vol. 2, p. 1887. We are not disposed to question the soundness of this doctrine, but do not think that it applies to transfers of the policy contract. Tbe company may have been willing to deal with tbe complainant when consenting to tbe first assignment of tbe policy to him, and may not, for sufficient reason, be willing to treat him as tbe owner or contracting party under tbe policy, when the reassignment, from Roper to him, was attempted. In sur379 anee companies, like individuals, have the right to determine the persons with whom they will deal, and, where the policy expressly provides that transfers can only be made with the written consent of the insurer and fixes a forfeiture in case of a violation of said provisions of the contract, such a clause is binding and will be enforced by the courts. The city court did not err in sustaining the demurrers to the bill of complaint, and the decree in doing so is affirmed. Affirmed. Dowdell, C. J., and Sayre and Evans, JJ., concur.