As showing further the necessity for The Universal Credit Company as a party to this suit, we quote the following endorsement on the policy of insurance: *Page 360
"Reducing Insurance Clause (102A)
__________ Insurance Limited to Unpaid Balance
Less Delinquent Installments
D — F M. P. 1A Notice No. DEA 50319-249
Broderick
__________ Effective from 11-2-38
Incorporated
Insurance
"Chicago General Agents San Francisco
New York Detroit Washington
"It is a part of the consideration of this notice and the basis upon which the rate of premium is fixed that this Company's liability is limited to the amount due the Universal Credit Company which is a named Assured, for its own account and/or for the account of any assignee of said Named Assured, on automobiles RPI — 6.51 financed by the said Named Assured for Retail Purchasers under legally enforcible Conditional Sale, Mortgage, or Lien agreements, excluding delinquent installments, or the actual Cash value of the automobile at the time of loss or damage, whichever be less.
"Other insurance permitted. This insurance is in excess of any other insurance which would cover if this insurance had not been effected
All other terms and
I conditions remain unchanged
S James S. Tumlin The Home Insurance
S Guntersville Dam Ala. Company New York
U 11-2
DEF 3047 E Automobile Department."
Rev. D
5M-8-38
T
O
The evidence shows that plaintiff was advised of this endorsement or limitation on the policy by the evidence of Maxine Tubbs, Elizabeth Bozigan and Robert Parks. This fact was denied by plaintiff saying, "No sir. I have never seen that paper, that little hickey there," referring to the limitation endorsement on the policy set out above.
The evidence of the plaintiff was that he was a machinist and knew the value of second hand cars and contracted to pay $630 for the car in question, gave notes for deferred payments at $25 per month. paid two installments of $25 each and one for $17 and traded in his old car for $350. The witness further testified that the Universal Credit Company sent him a book in which to list his payments and that the three payments he made were remitted to their Decatur office. He further testified that the motor was burned beyond repair and that the Green Motor Company made an estimate of repairs that would cost $167; that whether or not the figure of $460 is the amount of the mortgage due the credit company, he couldn't tell but he supposed he was to pay for a policy with a $50 deductible clause but when the policy came it contained a hundred dollar deductible clause; that he took it back to the purchasers and was going to get it straightened out but he didn't seem to have done it. In answer to the question. "Is that what The Universal Credit Company mailed you together with the little book that says you owe us," the witness answered, "I don't think they came together, I think that came from The Home Insurance Co." As to whether or not they came from The Home Insurance Company, witness answered, "They told me that was the policy I had paid for."
It is thus apparent that the witness had the policy declared on with the endorsement set out above.
We have stated above that plaintiff was a machinist, and in his examination as a witness in his own behalf was asked and answered as follows:
"Now did you see the car after the motor had been — I answer, Yes, sir. I did see the car immediately after the accident, *Page 361 after they called me over to the Green Motor Company. As to the condition of the motor, it was completely burned up. Yes, sir, I do know the reasonable market value in this community of a car with a burned out motor, in the condition I saw it in, after this accident, when I looked at it at Green's. Yes, sir, in its damaged condition.
"At this point the following proceedings were had:
"Q. What was it?
"At this point counsel for the defendant objected to the question on the grounds that he is not qualified to testify to the reasonable market value of the car. The Court overruled the objection and the defendant then and there duly reserved an exception.
"The witness answered: Fifty Dollars."
It is apparent that the judgment in behalf of plaintiff for $367, in the absence of the Universal Credit Company, would be depriving that company of its property without a hearing on the facts.
In the case of Home Ins. Co. of New York v. Scharnagel,227 Ala. 60, 64, 148 So. 596, 600, the policy was in like form as that here declared on and the court said:
"The question recurs: Did the trial court err in rendering final judgment for plaintiff? It is true the policy was made payable to Universal Credit Company for the account of all interests. This question of the right of plaintiff to maintain suit in his own name was not presented on the trial.
"The evidence shows that Universal Credit Company has been paid, and thereafter the owner, Scharnagel, is the party at interest, the insurance being payable to Universal Credit Company for the account of all interests. After the loss is fixed, suit may be maintained in the name of such beneficial owner. * * *"
It is thus clear that in the Scharnagel case, supra, it was specifically indicated that the right of plaintiff (Scharnagel) to maintain a suit in his own name, in the absence of Universal Credit Company, "was not presented on the trial." The writer of that opinion was careful to note for the court that the question of absence of a necessary party was not raised, and that the evidence showed Universal Credit Company had been paid and that in such state of the record and evidence Scharnagel was the party at interest. There is no inconsistency in the opinion originally rendered in this case and the decision in the Scharnagel case, supra.
The pleadings in behalf of the plaintiff are in short by consent. The defendant could not protect itself from a double liability under the interpleader statute, Section 10386, Code of 1923, Code 1940, Tit. 7, § 1179. That statute was not available to this insurance company, denying as it did liability on the grounds that the damage to the instant car was not a loss covered under the provisions of the policy declared on. The provisions of the afore-cited statute require that the insurance company to forego this defense, which was a bar of recovery, "deposit the money in court, praying an order that such person be required, on notice, to come in and defend." Code of 1923, § 10386. The Home Insurance Company of New York was not willing to waive this right as against the plaintiff Tumlin. on the one hand and the Universal Credit Company on the other.
There is yet another reason why the application for rehearing should be overruled. The clause in the policy designated "Peril A-(1)" reads, as follows:
"Peril A-(1) Comprehensive — Including (2) Deductible Collision or Upset
"Any loss of or damage to the automobile and the equipment usually attached thereto subject however to the Exclusions stated on Page 8, except that as respects loss caused by Collision with any other object or by Upset, the sum of $100.00 shall be deducted from the amount of each such loss when determined. 21.53 24.50."
The trial court in the oral charge submitted this material issue of fact to the jury, in the absence of such necessary party, the Universal Credit. Company. This question or issue of fact was raised by the exception to rulings on evidence on introduction of the policy, on the refusal of the general charge and on the motion for a new trial, which was denied to appellant insurance corporation.
In common parlance, the above clause means that, the first one hundred dollars of damage must be taken care of by the insured, and the insurance company is liable for excess over and above the first one hundred dollars of damage.
Thus no account was taken in the trial of the last cited provision of the policy declared on, or of the provisions of the exhibit (endorsement on the policy) hereinabove *Page 362 set out, and to which the plaintiff referred in his testimony as "a hickey," which he denied receiving, while admitting he received two documents as to insurance and the payment on the contract of purchase of the car.
From the foregoing, it appears to the writer that the application for rehearing should be overruled.
However, the majority of the court are of the opinion that the application for rehearing should be granted on authority of Home Ins. Co. of New York v. Scharnagel, 227 Ala. 60, 64,148 So. 596. It is so ordered.
Application for rehearing granted.
GARDNER, C. J., and BOULDIN, BROWN, FOSTER, and LIVINGSTON, JJ., concur.
KNIGHT, J., not sitting.
THOMAS, J., dissenting as indicated in foregoing opinion.