Commercial Fire Ins. Co. v. Allen

• Decision Date: 31 January 1887
• Citation: 1 So. 202,80 Ala. 571
• Parties: COMMERCIAL FIRE INS. CO. v. ALLEN and others.
• Court: Alabama Supreme Court

1 So. 202

80 Ala. 571

COMMERCIAL FIRE INS. CO. v. ALLEN and others.

Supreme Court of Alabama

January 31, 1887

Appeal from circuit court, Limestone county.

Action on policy of fire insurance.

This action was commenced April 24, 1882, by appellees, Ben Lee Allen and others, against the appellant insurance company and claimed damages for the loss or damage to a building or store-house situate on the north side of the public square in Athens, Alabama. The complaint was amended by filing two additional counts, May 15, 1885. The defendant pleaded (1) non assumpsit; (2) that the suit was prematurely brought, and before any right of action had accrued to the plaintiffs upon the policy of insurance; (3) that the suit was brought before the preliminary proof of loss was made by the plaintiff as stipulated in the policy of insurance sued on; (4) that suit was brought before notice of loss was given the defendant, as required by the policy of insurance sued on; (5) tender; (6) statute of limitations of one and two years as to amended complaint; (7) breach of warranty; and (8) misrepresentation. On May 15, 1885, plaintiffs moved the court to strike from the file the second, third, and fourth pleas, because they were united with pleas in bar. Upon the trial, May 15, 1885, the court granted this motion, and the defendant excepted. Trial was had upon the remaining pleas and resulted in a verdict for the plaintiffs for $327.37 from which this appeal is prosecuted.

The policy of insurance, which was numbered 2,461, is sufficiently described in the opinion of the court. Ben Lee Allen, one of the plaintiffs, as shown by the record, states that he called upon one Abrams, the loss adjuster of the company, upon telegraphic instructions of the company, a day or two after the fire, which occurred on April 4, 1882; and "he offered me one hundred dollars damages, and said that was all he would pay. He never refused payment for want of notice, or because sixty days had not expired, nor for want of proof of loss." Said witness then wrote to defendant, claiming the damages testified to,-more than $500,-and received a letter in answer thereto, denying liability except for articles specifically mentioned, and saying: "We have this day forwarded by express one hundred dollars to our agent in Athens, Mr. J. H. Davis, instructing him to call and pay you the damage sustained by fire under our policy No. 2,461, on fourth inst. You will please sign the receipts in duplicate as presented by him." The $100 was subsequently tendered to said Allen upon his signing a receipt in full for the loss under the policy, which was presented to him, but which he declined to do. Correspondence afterwards ensued between the company and him in regard to a settlement, but one was not effected.

The bill of exceptions further recites that "counsel for plaintiffs, in his concluding argument of the case, stated that the ancestry [naming them] of plaintiffs were well known to counsel, and to every one else who had lived in the community with them; that their honor, integrity, honesty, and truthfulness, and that of their descendants, had never been called in question until this soulless corporation, defendant in this case, had charged one of their descendants, Ben Lee Allen, with falsehood, fraud, and misrepresentation, in procuring the policy of insurance in this case." To these remarks of counsel the defendant objected at the time they were made, and asked the interference of the presiding judge. The counsel for the plaintiff declined to withdraw his remarks, and the presiding judge declined to interfere, and the defendant excepted.

It is not necessary to a proper understanding of the opinion of the court, to set out the many charges asked and refused.

Humes, Gordon & Sheffy, for appellants.

McClellan & McClellan, contra.

STONE C.J.

The present action is founded on a policy insuring real property against destruction or damage by fire. The property is described in the policy as follows: "Brick, one-story, iron-roofed building, *** occupied by S. Tanner & Son, family groceries, and after January 1, 1882, to be occupied by Henry Warten, and used as a family grocery store." The policy bears date December 17, 1881, and insures the property for one year. On the fourth February, 1882, the house was partially injured by the burning of a store contiguous to it, and on the twenty-fourth of the same month the present action was instituted. The insurer and the insured were not of one mind as to the extent of the property covered by the insurance. Out of this grew the contention and this lawsuit.

Attached to the building, at the front, was an awning or shed, erected on posts set in the ground, with rafters extending to and into the brick wall, and covered with plank. This awning was constructed by the owners of the building, not contemporaneously with it, but a year later. There were in the building, and attached to it by fastenings, shelving, drawers, and an office at the rear end, fenced off by plank work. All these, such as are customary in a store-house, were placed there by the owners, and let with the building. The insured claimed for the damage done to the awning, the shelving, and the office. The insurance company resisted this claim, and contended it was liable only for the damage done to the house itself.

Certain questions had been asked of the applicant for insurance, (Allen,) and answers given, before the policy was issued; and there is a clause in the policy in the following language: "Special reference is had to assured's application on file in this office, which is their warranty, and a part hereof." In the application are the following question and answer: "Is the land on which building stands held in fee-simple or on lease? Answer. Fee-simple." The third clause of the policy stipulates that "if the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, or if the building insured stands on leased ground, it must be represented to the company, and so expressed in the written part of this policy; otherwise the policy shall be void." After the building in controversy was erected, the plaintiffs sold the soil contiguous to it on the west to one Mason, and stipulated that, in building on the lot so purchased, Mason should make the west wall of the plaintiff's house the east wall of his, inserting his joists into the wall; and, Mason's house being a two-story building, it was further stipulated that he should raise the east wall of his building on the said west wall of plaintiffs. This was done, and the property stood in that condition, and in that right, when the policy was taken out in this case, and when the fire occurred. This, it is contended for appellant, was a misdescription of plaintiffs' title and ownership, and avoids the policy.

We do not think this objection well taken. We concur in opinion with the trial court, and hold that the essential purpose of the inquiry was to learn whether the property was held by a title in fee, or by a title less valuable than a fee; and whether the property was incumbered by alien interests, liens, or other incumbrances, which lessened the value of the applicants' insurable interest. The easement or servitude previously conveyed or granted to Mason was but carrying into effect the usual method of building in cities and towns by coterminous proprietors. It is shown that Ainsworth, appellant's agent at the time the policy was applied for and issued, resided in the town of Athens, where the property is situated. With him the assured negotiated, and effected the insurance. He was familiar with the premises, and must have known in what manner the houses were connected together, and that the east wall of Mason's upper story rested on the west wall of the house he was insuring. He was the agent of the insurance company, and we have no sympathy with any attempt to transform him into an agent of the applicants in any service connected with the issue of the policy. With him alone the assured had dealings; and it would be an anomaly if we were to hold he was their agent, and not the agent of the insurance company with which they were negotiating. If he did not represent the corporation, it had no representative, and yet agreed to the terms of a solemn contract. Such shifting use of a paid employe finds no sanction in that sturdy morality which should underlie every system of jurisprudence. Piedmont & Arlington Ins. Co. v. Young, 58 Ala. 476; Insurance Co. v. Wilkinson, 13 Wall. 222; De Lancey v. Insurance Co., 52 N.H. 581; May, Ins. § 143; Rowley v. Empire Ins. Co., 36 N.Y. 550. A few cases are variant from this principle. Wineland v. Security Ins. Co., 53 Md. 276; Jenkins v. Quincy Mutual Fire Ins. Co., 7 Gray, 370.

We do not think Allen's failure to disclose the fact and nature of Mason's right or easement impaired or affected the substantial truthfulness of the representation as to title. Ætna Ins. Co. v. Tyler 16 Wend. 385; Savage v. Howard Ins. Co., 52 N.Y. 502; Washington Fire Ins. Co. v. Kelly, 32 Md. 421; Couch v. Rochester German Fire Ins. Co., 25 Hun. 469; Castner v. Farmers' Mut. Fire Ins. Co., 46 Mich. 15; S. C. 8 N.W. 554; American Cent. Ins. Co. v. McCrea, 41 Amer. Rep. 647. We do not question the correctness of the following authorities, nor do we consider they conflict with the views expressed above. In each of them the misdescription was substantial, and materially impaired the nature of the title. Eminence Mut. Ins. Co. v. Jesse, 1 Metc. (Ky.) 523; Agricultural Ins. Co. v. Montague, 38 Mich. 548; Ætna Ins. Co. v. Resh, 40 Mich. 241; Davenport v. New England Mut. Fire Ins. Co., 6 Cush. 340; Wilbur v. Bowditch...