W. H. Thomas, Jr., brought suit against appellant, Fireman's Fund Insurance Company, to recover the value of a destroyed 1953 Cessna airplane which had been insured by appellant. The airplane was owned jointly by plaintiff and Clifford Otto Sasser and the insurance policy was issued to them as the owners. There was a loss payable endorsement to Jack B. Tatum who sold the airplane to Thomas and Sasser for $5,750. Of this, Thomas and Sasser each paid $1500, leaving a balance due of $2,750 which was covered by the mortgage to Tatum. Sasser was killed while piloting the plane.
Thomas brought suit on the policy to recover the full value of the plane, alleged in the complaint to be $4500. There has been no administration on the estate of Sasser. Tatum did not join in the suit as plaintiff; nor has he been joined as a plaintiff pursuant to Code 1940, Tit. 7, § 135, which provides for joining a necessary party as plaintiff who, upon request, does not consent to join in the suit.
Plaintiff's demand for a jury trial was withdrawn and the case was submitted for decision on a stipulation of the parties. Judgment was rendered in favor of plaintiff for $4,175. The insurance company brings this appeal from that judgment.
The decisive question on this appeal concerns the propriety of Thomas bringing the suit in his name alone. Appellant contends that the only proper party-plaintiff was the mortgagee Tatum because the mortgage indebtedness exceeded any amount which appellee might recover under the policy for his half interest in the airplane.
The record does not disclose how the trial court arrived at the figure $4,175 as damages. In appellant's brief it is stated, and not controverted by appellee, that the trial court made statements in discussing the case showing that the judgment was computed as follows:
Stipulated value $5750 Less deductible provided by policy 150 ______ Value insured 5600 Less mortgage to Tatum 2750 ______ Equity insured 2850 Appellee's half interest in equity 1425 Plus mortgage to Tatum 2750 ______ Judgment for $4175.
There is no question that the judgment exceeds the value of appellee's interest. In fact, it approximates 74% of the total value of the insured airplane, while appellee owned only a half interest.
Appellant makes this observation in its brief:
In appellee's brief it is stated:
By way of further answer to appellant's insistence that the mortgagee was a necessary party, appellee has filed in this court an affidavit made by Tatum to the effect that he has transferred the note and mortgage to appellee. There is no question that this transfer was made after the case was tried. Appellant has moved to strike this affidavit because it "avers matters which were not presented to the trial court but which arose after the taking of an appeal in this cause"; that it "includes matters which do not appear in the transcript filed in these proceedings," and that "consideration of the matters averred in said affidavit by this Court on appeal would be illegal."
We are at the conclusion that the trial court erred in rendering the judgment in favor of appellee.
It appears that the amount of appellee's claim under the insurance policy at the time suit was brought was $2,880.71, and on the date of the judgment was $2,990.66, arrived at as follows:
Value of insured aircraft $5,750 Less deductible provided by policy 150 _________ Total value insured $5,600 Appellee's one-half interest $2,800 Interest to date suit filed (Oct. 12, 1959, to Apr. 8, 1960) 80.71 Interest to date of judgment (Oct. 12, 1959, to Dec. 8, 1960) 190.66 _________ Appellee's claim on date suit filed $2,880.71 Appellee's claim on date of judgment $2,990.66
Principal amount of mortgage indebtedness $2,750 Interest at 6% from May 12, 1959, to date suit filed (April 8, 1960) 149.46 _________ Mortgage debt when suit filed $2,899.46 Principal amount of mortgage indebtedness $2,750 Interest at 6% from May 12, 1959, to date of judgment (December 8, 1960) 259.46 _________ Mortgage debt when judgment rendered $3,009.46
It can be seen, therefore, that the mortgage indebtedness held by Tatum and covered by a loss payable clause contained in the insurance policy, exceeded appellee's claim both when the suit was brought and when the judgment was rendered. (In this connection, it is to be noted that since appellee and Sasser's estate are jointly and severally liable for the mortgage indebtedness, appellee can be held for the entire amount.) The result is that Tatum, "being the exclusive beneficial owner of the whole money due by defendant, is the only person entitled to recover. After the loss became fixed, `the policy was nothing other than a contract for the payment of money.'" Code 1940, Tit. 7, § 126; Capital City Insurance Co. v. Jones, 128 Ala. 361, 364, 30 So. 674, 86 Am.St.Rep. 152; Life & Casualty Ins. Co. of Tennessee v. Crow, 231 Ala. 144, 146, 164 So. 83. In other words, an action at law on such policy must be brought in the name of the beneficial owner, that is, the person entitled to receive the money in his own right. See: Hanover Fire Ins. Co. v. Street, 234 Ala. 537, 543(8), 176 So. 350; Life & Casualty Ins. Co. of Tennessee v. Crow, supra; Home Ins. Co. of New York v. Scharnagel, 227 Ala. 60, 64(9), 148 So. 596; Union Ins. Soc. of Canton v. Sudduth, 212 Ala. 649, 651, 103 So. 845; Capital City Insurance Co. v. Jones, supra; Milwaukee Mechanics Ins. Co. v. Maples, 37 Ala.App. 74, 85(5), 66 So.2d 159, cert. den. 259 Ala. 189, 66 So.2d 173.
From the foregoing authorities, it is apparent that the action should have been brought by the mortgagee, thereby necessitating a reversal of the judgment in favor of appellee.
Appellee takes the position that, in bringing the suit, he was acting as trustee for the benefit of Tatum, the mortgagee, and, in view of § 134, Tit. 7, Code 1940, Tatum was not required to be a party. Section 134 provides, in pertinent part, as follows:
That section is not applicable to the present case. Here, there is no express trust; and we know of no statute which would make it unnecessary for Tatum to be a party.
Appellant's motion to strike appellee's affidavit, showing transfer to appellee by Tatum of the note and mortgage, is well taken. On consideration of the appeal, we are confined to the record of the proceedings in the trial court and cannot consider matter dehors the record. Evans v. Avery, 272 Ala. 230, 231-232, 130 So.2d 373; Robinson v. Morrison, 272 Ala. 552, 561, 133 So.2d 230; Lindsey v. Barton, 260 Ala. 419, 425, 70 So.2d 633.
The appellee died after the case was submitted here. His executrix has moved for revival of the cause in her name and the motion has been granted.
Motion to strike appellee's affidavit is granted.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.