127 So. 812 | Ala. | 1930
Action by appellee against appellant on a policy of insurance whereby appellant insured one Ford automobile against loss by theft.
The first assignments of error argued by appellant's brief raise the question whether the court erred in admitting over defendant's objection the certificate or policy of insurance set out on pages 22 and 23 of the transcript. This "certificate" referred to "Open policy No. 400." The certificate contained the recital that "in consideration of and subject to all the stipulations and conditions contained in Open Policy numbered as above," etc. Plaintiff testified that nothing other than the certificate had been issued to him. Defendant's objection, on the ground that the plaintiff ought not to be permitted to introduce a part only of the contract of insurance, was overruled. The trial court appears to have taken the view that section 8371 of the Code operated to make the certificate the exclusive evidence of the contract between the parties, and hence that plaintiff was not under duty to introduce the policy, meaning the policy referred to in the certificate — as part of the contract — that the certificate was in law and fact the policy. We cannot say the court erred in this ruling. The statute seems to intend that the "policy issued" shall be the sole memorial of the contract of insurance. The fact that the evidence of contract issued to plaintiff was called a certificate makes no difference. By virtue *113 of the statute, according to which, indisputably, the parties entered into the contract, the certificate became the policy of insurance.
Appellant relies upon Alabama Tennessee R. R. Co. v. Nabors,
Nor does the decision in Alabama Fidelity Casualty Co. v. Alabama Penny Savings Bank,
In Cherokee Life Ins. Co. v. Brannum,
Another objection taken in the brief against the certificate, or policy, allowed in evidence by the trial court, is that it indemnifies "Prior Motor Company, Inc., assured, and H. B. Griffith [plaintiff] Purchaser, against loss * * * by theft," and that the Prior Motor Company had not been made a party to the cause. It will suffice to say of this objection that it does not appear to have been taken in the trial court, and cannot, therefore, avail to put that court in error.
It appeared in evidence — the testimony of plaintiff — that for five or six months before the "loss" of the automobile it had been in the use and keeping of one Hughes, who during that time had paid installments due on the purchase money, that "he (Hughes) told him (plaintiff) that he had the car at the time it was stolen," and that he (Hughes) signed what purported to be a proof of loss "D. M. Hughes, Assured." On this state of the evidence charge 5 (assignment of error 23) should have been given to the jury. There was at least a scintilla of evidence that plaintiff had sold the automobile to Hughes — evidence affording an inference, the reasonableness of which was for jury decision, that plaintiff had parted with his property in the automobile, and therefore, at the time of the alleged "loss," if by theft, was not entitled to recover. Commercial Fire Ins. Co. v. Capital City Ins. Co.,
For proof that the automobile had been stolen, plaintiff was allowed to testify, over defendant's objection, that in a conversation between Hughes and one Amos, who, it was possible to infer, acted for defendant in directing plaintiff how to prepare his proof of loss, Hughes had told Amos that the car had been stolen. This was hearsay, and should have been excluded on defendant's objection seasonably made. It had no such relation to the previous conversation about which defendant had inquired as to make it admissible as a part thereof. Moore v. Smith,
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.