This is a companion case to that of American-Equitable Assurance Company v. Powderly Coal Company, reported in 221 Ala. 280, 128 So. 225, in which the judgment was reversed and upon another appeal from another judgment in the same case the Supreme Court corrected its first opinion and affirmed the judgment, as now appears. American Equitable Assurance Company v. Powderly Coal & Lumber Company, 225 Ala. 208, 142 So. 37.
In the last cited case it is now held that both Mrs. Bailey (plaintiff here) and Pow
The policy was issued to the plaintiff in this case at the instance of Powderly Coal & Lumber Company with a standard loss clause attached as a rider, making the loss payable to Powderly Coal & Lumber Company as its interest might appear. . The Powderly Coal & Lumber Company brought its suit on the contract running to it in the rider. This plaintiff brought her suit on the original contract of which she was the beneficial owner. The trial court instructed the jury that the Powderly Company was first entitled to recover and that this plaintiff could only recover the residue, if any, under the policy.
The questions of insurable interest, waivers, and estoppel were all settled in the case referred to above. By that decision we are bound and we do not go into a consideration of those questions.
Under a standard loss payable clause, the payee named therein has the superior right to recover to the extent of his or her interest proven on the trial and the assured can only recover any balance in excess. In other words, a contract insuring property from loss by fire and issued to A, with a standard loss clause attached as a rider, payable to B as his interest may appear, is a severable contract, giving to B the primary right to sue for his interest in the proceeds of the policy and to A the right of suit for the remainder if any. Girard Fire & Marine Ins. Co. v. Gunn, 221 Ala. 654, 130 So. 180.
The appellant insists that the trial court erred in admitting in evidence a certain abstract of title to the property insured. ■It was shown that this abstract was furnished to the agent of defendant and was admissible upon the question of notice and estoppel.
There was some evidence tending to prove that the Powderly Company contracted for this insurance for the benefit of itself and this plaintiff. .Whether this was so or not was a question for the jury and it was so submitted.
Assuming that the major questions in this case have already -been correctly decided by the Supreme Court, we find no error in the record and the judgment is affirmed.
Affirmed.