65 So. 78 | Ala. | 1914
Plaintiff joined counts on a policy of insurance with others, counting on an award made in the arbitration of a loss suffered under the same policy. Defendant objected to the presence of the counts on the policy, saying that the cause of action there counted upon had been merged in the award shown by the other counts. The doctrine of merger in such cases cannot be doubted; but it does not follow that the policy counts should have been stricken on motion or demurrer. Each count must stand or fall upon the merits of its own averments. There may be a misjoinder; but an objection on that ground goes to the complaint as a whole. There was in this case no objection to the complaint as a whole, nor was there any ground of objection. Under the statute of this state all actions on contracts may be joined, and even actions ex delicto may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject-matter. — Code, §§ 5328, 5329.' So defendant might have stood upon the award, if it had been so disposed, or it might have pleaded inconsistent pleas.—Ferdon v. Dickens, 161 Ala. 181, 49 South. 888. But defendant had no right to limit the controversy at its threshold to the award. It might take inconsistent attitudes in pleading, as being uncertain of the result of the evidence, but it could not expect either court or jury, when it came to the pinch of deciding the question of fact, to hold in one breath that there was and there was not a valid award. All this may seem too plain for argument.
There was nothing in the objection to the introduction of the policy in evidence that it varied from the policy declared upon. The declaration of some of the counts, in the code form, was for the destruction or damage by fire of plaintiff’s automobile truck, which defendant had insured against loss or damage by fire, “and other perils in the policy of insurance, mentioned.” The policy insured, not only against fire, but against pilferage and the perils of transportation, and was thus not exclusively a fire- policy. It was a policy of fire insurance, none the less, and the code form was properly used in declaring upon it. The policy was properly admitted in evidence.
Moore ivas defendant’s local agent to solicit and write insurance at Birmingham, and had written the policy in suit. After the loss plaintiff had consulted with Moore, giving notice and proof of loss through him-that is, plaintiff had notified him of the loss, and had prepared his proof of loss on a blank form furnished
Appellant assigns for error the admission in evidence of the award made by the umpire and one of the appraisers. The signature of the other appraiser was not appended, and on this omission appellant bases its assignment of error, citing McCrary v. Harrison, 36 Ala. 577. The agreement, made in pursuance of a stipulation of the policy, provided that the award of the appraisers and umpire, or any two of them, should determine the amount of the loss. It was made very clearly to appear, and this without contradiction, that the second appraiser had not failed to sign the award for lack, of
It is enough to say of appellant’s assignment of error, based on tbe court’s refusal to- allow tbe witness McPherson to state bis judgment as to whether notes plaintiff bad given for tbe purchase price of truck retained title in the vendor, that at tbe time of tbe ruling-complained of no issue bad been made concerning- plaintiff’s sole and unconditional ownership of tbe truck.
After tbe evidence bad closed, appellant asked leave to file a plea presenting tbe defense that tbe policy was void under its terms because plaintiff bad not tbe sole and unconditional ownership of tbe truck during tbe life of tbe policy. Tbe court refused to allow tbe plea to be filed, and appellant excepted. The matter rested within tbe discretion of tbe court, and will not be revised in tbe absence of a clear showing of abuse.—Craig v. Pierson Lumber Co., 179 Ala. 535, 60 South. 838. We have cases that look strongly to tbe proposition that plaintiff bad title Avithin tbe meaning of tbe policy without regard to payments made, even though tbe purchase-money notes reserved title in tbe vendor.—Commercial Union Assurance Co. v. Ryalls, 169 Ala. 517, 53 South. 754; Loventhal v. Home Ins. Co., 112 Ala. 108, 20 South. 419, 33 L. R. A. 258, 57 Am. St. Rep. 17. But aside from that, enough appeared in tbe evidence to
Charge 5, requested by defendant, was properly refused. It ignored the issue raised by counts 5 and 6.
The several charges requested, to the general effect that plaintiff could not recover under any aspect of the evidence, were well refused.
■ We find no error in the record. Probably plaintiff was not entitled to recover upon the policy because there had been an award; but appellant refrained from presenting this solution of the case because it would have involved a concession that plaintiff was entitled to recover on the award. The jury’s assessment of damages was fairly well supported by the evidence, and we have found no good reason for disturbing the result.
Affirmed.