Norwich Union Fire Insurance Society v. Prude

47 So. 974 | Ala. | 1908

DOWDELL, J.

This is the second appeal in this case, and, as stated by counsel for appellant in brief, the questions involved are much the same as raised on the former appeal. — 145 Ala. 297, 40 South. 322. Since the remandment, however, of the cause, the fifth count of the complaint has been amended in conformity to suggestions contained in the opinion of Justice Anderson on former appeal as to what should be averred to constitute a good complaint. There was no error, therefore, in overruling the demurrer to the fifth count as last amended.

The second, third and fifth assignments of error are grouped in argument by counsel for appellant and insisted on only as presenting the same legal question as raised by the ruling of the lower court on the demurrer to plea A. This plea in the main is argumentative. Eliminating the argument and conclusions of the pleader, there are no facts stated in the plea inconsistent with the alleged stipulations in the policy that require the interest of the assured shall be truthfully stated, or that such interest shall not be less than unconditional and sole ownership. That the policy is made payable to the “estate of Lucy A. Prude” is no reason for saying that this is an untruthful statement of the interest of the assured in the property. It was perfectly competent for the parties by agreement to do this. The plea does not undertake to state as a fact that there was any misrepresentation or false statement made in this respect, or that it was not well known by the defendant company, when it issued the policy, that the plaintiffs alone were interested as the assured.

The tenth plea, to which a demurrer was sustained, was bad, and subject to the demurrer. This plea fails to set out the policy, or the conditions contained in it, the alleged breach of which is relied on as a defense. The statement in the plea “that said policy of fire insurance provides that it shall be void in case of any fraud by the insured touching any matters relative to this insurance or the subject thereof, whether before or after the loss,” is but the statement of the opinion or conclusion of the pleader. Good pleading requires that the conditions of the policy, at least in substance, shall be set out in- the plea, in order that the court may determine on demurrer whether the facts stated as constituting the breach relied on as a defense in law amounted to a breach of the conditons.

The portion of the oral charge of the court to which an exception was reserved was in substance the statement of the provision of the statute (sections 2619, 2620, of the Civil Code of 1896). If the defendant supposed that the charge had any tendency to mislead the jury, .it was open to it to request an explanatory charge.

The complaint contained a substantial cause of action, and the evidence supported it. The general charge requested by the defendant was refused. The evidence has been carefully considered by us, and there is no sufficient reason for saying that the court erred in overruling the motion for a new trial. No error appearing in the record, the judgment is affirmed.

Affirmed.

Tyson, G. J., and Anderson and McClellan, JJ., concur.