Opinion
8 Div. 494.
March 9, 1933.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
S. A. Lynne, of Decatur, and Stokely, Scrivner, Dominick Smith, of Birmingham, for appellant.
Where the trial court's judgment is founded on a mistake of law, the rule that in cases tried before the court the judgment will not be disturbed unless the preponderance of evidence against it is so decided as to clearly convince the court that it is wrong does not apply. Fiquett v. Wade Elec. L. P. Co., 206 Ala. 630, 91 So. 357; Murphree v. Hanson, 197 Ala. 246, 72 So. 437. Where fire policy covered total value of property in which insured had merely an interest, insured could not sue for total loss, either as real party in interest or in a representative capacity. Burrows v. Farmers' Alliance Ins. Co., 111 Kan. 358, 207 P. 401. A policy of fire insurance after loss is fixed becomes a contract for payment of money under the statute, and suit must be brought in the name of the beneficial owner, the person entitled to receive the money in his own right. Union Ins. Soc. v. Sudduth, 212 Ala. 649, 103 So. 845, 847; Capital City Ins. Co. v. Jones, 128 Ala. 361, 30 So. 674, 86 Am. St. Rep. 152; Norwich Union F. I. Co. v. Prude, 145 Ala. 297, 40 So. 322, 8 Ann. Cas. 121; Code 1923, § 5699. In the exercise of good faith, skill, and diligence, the agent is bound to keep his principal informed of all matters that come to his knowledge concerning the principal's rights and interests. 21 R. C. L. 828. On indorsement of a policy, loss, if any, payable to another as his interest may appear, does not give the assignee a right to the loss absolutely, but to the extent of any interest he may have at the time of the loss. 7 Cooley's Briefs, 1538.
Tennis Tidwell, of Decatur, for appellee.
Where the company has, with knowledge of the nature of the interest of insured, recognized such interest as sufficient to support a policy, it cannot question the sufficiency of such interest. Amer. Ins. Co. v. Newberry, 215 Ala. 587, 112 So. 195. The witnesses were examined orally in the presence of the court, and the appellate court should indulge every presumption in favor of the findings of the trial court. Sov. Camp v. Hubbard, 217 Ala. 431, 116 So. 163. Assignments as to rulings on demurrer are directed to the complaint as a whole, and are therefore too general to challenge rulings as to the separate counts; and, if any one is good against demurrer, the assignments must fail. Brent v. Baldwin, 100 Ala. 635, 49 So. 343; Middleton v. Telegraph Co., 197 Ala. 243, 72 So. 548; Morton v. Clark, 10 Ala. App. 439, 65 So. 408; Smith v. Roney, 182 Ala. 540, 62 So. 753. Count 2 is in Code form, and therefore sufficient. The demurrer was inapt to counts 1 and 4. Com. F. I. Co. v. Capital City Ins. Co., 81 Ala. 320, 8 So. 222, 60 Am. Rep. 162; Caledonian Ins. Co. v. Jones, 214 Ala. 520, 108 So. 331; Globe Rutgers Fire Ins. Co. v. Pappas, 219 Ala. 332, 122 So. 346; National Fire Ins. Co. v. Kinney, 224 Ala. 586, 141 So. 350. Evidence pertinent and admissible under that remaining count 3 was introduced under count 2, and hence the sufficiency of this count should not be determined on this appeal. Bond v. Kay, 223 Ala. 431, 136 So. 817; Henderson v. Hinson, 157 Ala. 640, 47 So. 717. Any error in overruling demurrer to count 3 was cured by evidence establishing the missing averment. Mobile O. Railroad Co. v. Williams, 224 Ala. 125, 139 So. 337; Best Park v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; Jackson v. Baughn, 204 Ala. 543, 86 So. 469.
Action on a policy of automobile fire insurance by the Home Investment Loan Corporation against the Globe Rutgers Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.
Affirmed.
The plaintiff is what is known as a "finance corporation," and was engaged in buying automobile notes and mortgages. For its protection in the purchase of such papers, there was secured from defendant what is termed "a master policy" of insurance, which was prepared in New York, forwarded to its general agent and by him forwarded to one Rankin at Decatur, with instructions to countersign the same, which was done. Rankin was secretary and manager of plaintiff corporation — a fact known to the general agent, though there is no proof he knew that Rankin also owned some of its stock.
Under the provisions of the policy, as plaintiff purchased automobile paper it was authorized to furnish defendant certificates, and the automobile covered by the paper became insured from the date of the certificate.
The Sims Motor Company sold a Cadillac sedan to one Markham for $1,595, with $700 paid, and the balance represented by his note secured by mortgage on the car. On the same day of the sale the Sims Motor Company sold and transferred to the plaintiff the note and mortgage of Markham, and plaintiff thereupon issued and delivered the certificate, and thereafter paid the premium, and the car became insured under the master policy in the sum of $800. It was destroyed by fire within a month, and this suit is to recover on said policy.
Plaintiff is a "finance corporation" and engaged in buying automobile papers. Under the provisions of a "master policy" with defendant, it insured for $800 an automobile which had been sold by the Sims Motor Company to one Markham; the note and mortgage for the deferred payment of $895 having been duly transferred to the plaintiff.
The trial court, sitting without a jury, found for the plaintiff on counts 2 and 3, and those assignments (12, 13, 14, 15, 16, and 17) which relate to the introduction of evidence under counts 1 and 4 (thus eliminated by this finding), need not be considered, as in no event could prejudicial error have here intervened. The assignments chiefly relied upon relate to the action of the court in denying defendant's motion for a new trial, the argument in support of which rests largely upon the assumption the weight of the evidence shows the Sims Motor Company, or Markham, the purchaser, had an interest in the policy or the proceeds thereof, and that suit must be brought in the name of the party really interested, the beneficial owner, citing section 5699, Code 1923; Union Ins. Society v. Sudduth, 212 Ala. 649, 103 So. 845; Capital City Ins. Co. v. Jones, 128 Ala. 361, 30 So. 674, 86 Am. St. Rep. 152; 7 Cooley's Briefs on Ins. p. 1538; 1 Cooley's Briefs on Ins. pp. 777, 778.
The authorities relate to cases in which the policy contained a "loss payable" clause, while in the instant case no such policy provision is involved. Here the note and mortgage were unconditionally transferred to the plaintiff, and the insurance was, upon the face of the policy, for the protection of plaintiff alone, and there was proof that no one had any interest therein except this plaintiff.
There was evidence that only $450 was paid by plaintiff on the transfer, and some testimony of a more or less hearsay character, indicating the Sims Motor Company was interested in the proceeds, and it is clear defendant strongly suspects some fraud or collusion concerning the insurance and the loss. But all this is conjectural, and at most rests upon conflicting proof.
Defendant recognizes the force of the rule of presumption in favor of the trial court on the facts when he sees and hears the witnesses testify, but would avoid the same by invoking the exception to the rule where the finding is based upon a misconception of the law. Fiquett v. Wade Electric L. P. Co., 206 Ala. 630, 91 So. 357; Murphree v. Hanson, 197 Ala. 246, 72 So. 437. But we find no room for the application of the exception noted in these authorities, and upon a careful consideration of the evidence we are persuaded the conclusion of the trial court should not be here disturbed.
Certainly the fact that defendant's local agent was also secretary and manager of plaintiff would not justify a contrary ruling, especially in view of the fact that such relationship was well known and understood by the defendant's general agent in this state, though he may not have known he also owned some of its stock. It may be that upon final collection of the note the Sims Motor Company expected further payment (a fact by no means well established), yet it is clear the title to the note and mortgage vested unconditionally in plaintiff, and the insurance was so written, and proof tending to show that plaintiff only was interested in the policy and its proceeds. The trial court found the value of the car to be $1,000, and allowed a recovery for three-fourths thereof according to the terms of the policy. As previously noted, defendant's general agent knew of the interest of defendant's local agent in plaintiff as its secretary and manager, and the argument, based on the testimony of the defendant's general agent, to the effect the insurance, pursuant to custom, should have been less, runs counter to the terms of the policy which was prepared at the home office in New York.
We do not agree, therefore, that defendant has shown any excessiveness of the amount in the judgment or that there has been any breach of warranty on plaintiff's part.
As to the demurrer to the complaint, the assignments are directed to the complaint as a whole and are too general to challenge the ruling on separate counts, and, if any one is good, these assignments fail. Brent v. Baldwin, 160 Ala. 635, 49 So. 343; Middleton v. W. U. Tel. Co., 197 Ala. 243, 72 So. 548.
Count 2 was in Code form and sufficient. Commercial Fire Ins. Co. v. Capital Ins. Co., 81 Ala. 320, 329, 8 So. 222, 60 Am.Rep. 162.
Evidence pertinent and admissible under count 3 had to be, and was, introduced under count 2. Reversible error could not therefore be rested upon any ruling as to count 3. Bond Bros. v. Kay, 223 Ala. 431, 136 So. 817.
We find no error to reverse. Let the judgment be affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.