Liverpool & Loudon & Globe Insurance v. Tillis

110 Ala. 201 | Ala. | 1895

COLEMAN, J.

The appellee, Tillis, sued upon a fire policy of insurance to recover for the loss sustained, by the burning of a storehouse and a stock of merchandise. The total insurance was for eleven hundred dollars, nine hundred of which was placed upon the merchandise, and two hundred, upon the building. The defendant pleaded in defense several pleas, each of which averred a breach of some covenant of the assured contained in the policy.

The sixth plea averred a breach of what is denominated the “Iron Safe Clause” of the policy, by which the assured covenanted to keep a set of books, showing pmr-chases and sales of merchandise and last inventories, &c. We do not feel authorized by the pleadings to determine whether or not a breach of this covenant could be legally pleaded to an action for the recovery of the value of the building.—State Insurance Co. v. Schreck, 27 Neb. 527; s. c. 20 Amer. St. Rep. 696, note; Loomis v. Rockford Ins. Co., 77 Wis. 87; s. c. 20 Amer. St. Rep. 96, and note; Phoenix Ins. Co. v. Lawrence, 4 Metcalf (Ky.) 9, 14.

The judgment entry recites, that issue was joined on the plaintiff’s replication to the defendant’s pleas. Parties have a right to frame their own pleadings, and however defective the replication, this court can only consider the rulings of the trial court upon' the issues presented by thó pleadings. The same replications were filed to pleas number two, three, four' and five. By his replications, the plaintiff admitted the truth of the facts averred in the pleas, and their, sufficiency as a defense to the action. By joining issue upon the plaintiff’s replications, the defendant admitted, that if plaintiff sustained either one of them by proof, that plaintiff was entitled to recover, so far as the pleas replied to were relied upon as a defense. Controlled by these principles of pleading, it is not necessary to examine each replication and the evidence offered in support of the replications. From an examination of the fourth replication to pleas 2, 3, 4 and 5, and a comparison of the facts averred in said replication, with the evidence of the witness Ohancey, it is apparent that plaintiff introduced evidence, to which there was no objection, which, if believed, sustained this replication. The language of this witness as stated in the bill of exceptions, is almost identical with that used in the replication.

The appellant contends that there was no evidence to support the plaintiff’s replications to plea number 6, which averred a breach of the “Iron Safe Clause,” and that the defendant wras entitled to the affirmative charge on this plea. The first replication to this plea averred that the books were burned in the fire. The defendant’s witness Morris, on his direct examination, testified that the insured “told him that the books were burned in the building.” The statement was never controverted. The testimony may have been objectionable, but it was not objected to. It was introduced by the defendant for some purpose. Its tendency was to show a destruction of the books,and the breach of the iron safe clause. The replication may have been wholly insufficient, but issue was joined upon the replication. The plaintiff had offered evidence of a similar statement, without objection. We can not sanction a practice, which would permit a party voluntarily to put facts or statements before a jury, calculated to influence their minds, and then assert its illegality or incompetency. We are also of opinion that there was evidence tending to support the second replication to the sixth plea. This replication may also have been defective in many respects, as an answer to the plea, but the defendant took issue upon the averment of facts. There was evidence tending to show, that Morris was an agent of the defendant, and that Prioleau was its adjuster, and that they did not pay the full amount of the policy. We do not understand the replication as averring that Morris and Prio-leau were authorized to pay the policy in full, and the replication may have been demurrable in not averring authority. The case of Phoenix Insurance Co v. Copeland, 86 Ala. 551, 556, does not sustain appellant’s argument. Replication numbered 2 in that case averred that Jackson, defendant’s agent, “informed him that the policy was all right and that the loss would be paid, and that Jackson had authority to make such representation, and to bind the defendant by said representa-, tion.” The replication was held good on demurrer. It required the averment of authority on the part of Jackson to make it good against demurrer. If the replication had omitted the averment of authority, and without objection the defendant had joined issue upon the averment that Jackson “had informed him that the policy was all right and would be paid,” upon proof of the averment, the plaintiff would have been entitled to recover. The joinder in issue admitted the sufficiency of the facts as they were averred in the replication, to be a complete answer to the plea. The further averment in the second replication, in the case at bar, to-wit, “and by its denial of any and all liability, under said policy,” devolved upon the plaintiff to show a denial of liability by the defendant. The replication in this respect does not undertake to set out the facts of the denial or by whom the denial was made. It was incumbent on plaintiff under this averment to show a denial of some one authorized to bind the company. There is evidence tending to show that Prioleau the adjuster, acting as such, denied the liability of the company upon the policy, and the question is whether the company was bound by his action in the matter of the denial of any and all liability. ‘‘The adjustment of a loss,” says Bouvier, “is the settling and ascertaining the amount of the indemnity which the insured, after making all proper allowances, is entitled to receive; * * * or it is the amount of the loss as settled between the parties to a policy of insurance.” 1 Bouv., § 1222.

We think the argument entitled to little weight which attempts to distinguished between the authority of Prio-leau, who was appointed and authorized to apt as adjuster in the present case, and the authority of the general adjuster of the company. He testified that his duties in the particular case were the same as that of any other adjuster. The insured dealing with him as such, in the absence of notice to the contrary, had the right to presume he was authorized to act and to bind. the company as to all matters within the scope of his duties as the adjuster of the particular case. He was present where the fire occurred. He was there to adjust the loss after notice given to the company of the fire. As adjuster he had the authority to waive the production of the books, or the formal proof of loss. If after investigating the circumstances of the burning and the amount of loss sustained he denied, to the insured, the liability of the company upon the policy, it was as much a denial by the company of liability as to the particular case, as if it had been made by the general adj aster of the company. He testified he was directed by the company to report whether in his opinion the company was liable, and he reported in writing, that in his opinion the company was not liable. Although his opinion, as such, was not evidence to bind the company to his conclusion, the evidence tends to show the scope of his duties, and authority.—Capital City Ins. Co. v. Caldwell, 95 Ala. 77; Fire Inn. Co. v. Felrath, 77 Ala. 194; Queen Ins. Co. v. Young, 86 Ala. 424; Aetna Ins. Co. v. Shryer, 85 Ind. 362; Butterworth v. Assur. Company, 132 Mass. 489; May on Insurance, § 505.

We are satisfied the evidence tended to support the replications to the sixth plea of the defendant.

The bill of exceptions fails to put the court in error, in overruling the defendant’s objection to the question and answer of the witness Prioleau. There is but one objection, and that was to the question and answer. It is evident that the objection was not raised until after the witness had answered. If the answer was responsive to the question, and for aught that appears it was, the objection came too late. The ground of objection stated was, that “it was illegal,” and was directed against the entire answer. The witness testified, “that he wrote to the company telling them that he did not think it liable under the iron safe clause, and that proof of loss had not been made.” The entire evidence was not illegal. It may have been secondary and subject to the objection that the letter was better evidence ,and its absence should be accounted for before receiving evidence of its contents.

What has been said heretofore in reference to the testimony of the witness Prioleau, is sufficient to show that the court did not err in overruling the motion to exclude the evidence of the witnesses Morris and Prioleau. The motion was single and applied to the evidence of both witnesses.

An adjuster may waive proof of loss. We find no error in the charges given'by the court at the request of the plaintiff. The defendant was not entitled1 to the general affirmative charge. By joining issue on plaintiff’s replication, the defendant waived his right to insist upon the legal propositions involved in charges numbered two, six, seven, eight and twelve, conceding them to be correct abstractly, and the court did not err in refusing them. Charge number five asserts a proposition at variance with the law, and was properly refused.

There is no error in the record available to appellant, and the judgment of the court is affirmed.