101 Ala. 634 | Ala. | 1893
The action was to recover an amount claimed to be due upon a fire policy of insurance. The declaration consists of three counts ; the first in the common form on the policy, averring the insurance of cotton, the destruction of seventeen bales, &c. by fire; the second count is upon an account stated, and the third, for money had and received. Several assignments of error are made upon the rulings of the court upon the pleadings, but we are of opinion that a few general principles will settle them all. To the first count there was a special plea, setting out the entire policy of insurance, one clause of which limited the extent of the liability of the insurance company, followed by an avei’menc of facts which, if true, under the construction of the limiting clause contended for by the defendant, showed a certain amoxxnt to be dxxe, and a plea of tender in legal forxn of this amount. A demurrer to this plea was overrxxled, the correctness of which ruling involves the construction of the lixniting claxxse of the policy. It is as follows : "Ordinary form for open warehouses. On cotton in bales, their own, or held by them in trust, or on commission, or on joint account with others, or sold but not delivered, contained in McGee’s warehouse, situated in North Port, Alabama. It is understood and agreed to be a condition of this insurance that this policy shall not apply to or cover any cotton which xnay, at the tixne of loss, be covered in whole or ixx part by or under the protection of any marine insurance, or policy of any marine company; axxd further, that this company shall be liable only for such proportion of the whole loss as the insurance bears to the cash value of the whole property hereby insured, at the tixne of the fire. Other concurrexit insurance permitted without notice until required.” The plea then averred that there were forty bales of cot
The insurance was for nine hundred dollars, the cash value of the whole property covered by the policy was averred to be $1,743.35, the loss valued at $750, the proportionate liability of the insurance company $387.21, which amount was tendered and brought into court. There does not seem to be any difficulty or ambiguity about the construction of the limitation clause of the policy, or in ascertaining the proportionate liability. The insurance company was liable for a fraction over 51 i per cent, of the whole loss, and the insured for something less than 48k per cent. We do not concur in the proposition, that the clause is unreasonable and unjust, and for this reason ought not be sustained. True, the amount of property which an open policy, or “blanket policy”, as it is sometimes called, of this character could be made to cover, under some circumstances, might be so valuable, that a recovery for loss by fire would not be commensurate with the premium paid, but this condition can not occur except by the voluntary action of the insured. The amount of the insurance is nine hundred dollars. By not permitting the value of the property insured to exceed the amount of the insurance, the entire loss is recoverable. If the whole property insured had not exceeded nine hundred dollars, the entire loss would be recoverable under the provisions of the policy. The risk the insured carries, under the provisions of this
The second plea to the first count, as a plea of tender, was defective in not averring “and now brings the money into court.” We- would not be justified in reversing this case because of this defective plea, when the first plea to the same count, was in legal form as a plea of tender, and the evidence shows, without dispute, that the money was actually paid into court, at the time of filing these pleas.
It is elementary that a replication to a plea can not set up a cause of action different from that declared on. The first count, declares upon a contract of insurance. To recover on this count the plaintiff is required to prove a valid, subsisting contract. The facts averred in one of the replications, if true, stamps the contract as fraudulent and void as to plaintiff. The plaintiff can not count on the contract for a recovery, as a valid contract, and by replication to defendant’s plea avoid its provisions for fraud. He sues ex contractu, his replication shows a tort.— Winter v. Mobile Savings Bank, 54 Ala. 174; 1 Chitty Pl., 643; McAden v. Gibbon, 5 Ala. 341. The court did no.t err in its rulings upon the plaintiffs’ replications to the pleas of the defendant to the first count of the complaint.
To the second count of the complaint, that which counted upon a stated account, the defendant pleaded two pleas, the first the general issue, and the second a special plea. Under the evidence in this case and that proposed to be proven by plaintiff, the second count was not-made out, and the plaintiff failed upon the general issue. We do not understand the special plea to the second count, as bearing the construction contended
It is clear to our minds that the amount tendered and paid into court by the defendant was the full measure of the recovery plaintiff was entitled to ; and as there was no dispute of the facts upon these issues, the court did not err in its instructions to the jury.
Affirmed,
