Union Marine & General Ins. Co. v. Holmes
| Decision Date | 19 June 1947 |
| Docket Number | 6 Div. 552. |
| Citation | 249 Ala. 294,31 So.2d 303 |
| Court | Alabama Supreme Court |
| Parties | UNION MARINE & GENERAL INS. CO., Limited, v. HOLMES. |
Davies, Mead & Williams, of Birmingham, for appellant.
Jas W. Aird, of Birmingham, for appellee.
This is an action of assumpsit by the appellee against the appellant on a policy of insurance insuring the automobile of the plaintiff against damage by collision or upset. The complaint consists of two counts, the first count following substantially form 12 prescribed by § 223, Title 7, Code of 1940, averring that the amount claimed is 'due on a policy of insurance whereby the Defendant on the 8th day of February, 1943, insured the automobile of the plaintiff against damages by collision or upset.' Said count also avers that the 'automobile which was insured under said policy of insurance was totally destroyed by collision or upset on the 7th day of February, 1944, * * *.'
The second count avers that the sum claimed was 'due on a policy of insurance whereby the defendant insured the automobile of the plaintiff against damages by collision or upset.' That said policy contained the following provisions: The count then avers that said automobile 'insured under said policy of insurance was destroyed by collision or upset on the 7th day of February, 1944, at 4:45 P.M., and on the 9th day of February 1944, the plaintiff's wife, acting as his duly constituted and authorized agent, contacted Warner Realty & Insurance Company, the duly authorized agent of the defendant in the City of Birmingham, and inquired if said policy was in force and effect on the date and time of the collision, and plaintiff's wife then and there informed said Warner Realty & Insurance Company that said automobile for the plaintiff had been damaged by collision or upset. And plaintiff avers that in response to the request by plaintiff's wife, the Warner Realty & Insurance Company, acting within the scope of its authority as agent of the defendant informed plaintiff's wife that said policy was in full force and effect until the 8th day of February, 1944, at 12:01 A.M., and that plaintiff's loss was covered by said policy, and further requesting plaintiff's wife to call the plaintiff, who was then in Eatonton, Georgia, and inform him that his claim would be paid, which plaintiff's wife did.
'And plaintiff avers that he relied upon the representations made by said Warner Realty & Insurance Company, the duly authorized agent of the defendant, that said policy was in full force and effect and that his claim would be paid. * * *.'
Said count also contains the averment to the general effect that on February 20, 1944, a duly authorized agent of the defendant, 'while acting within the line and scope of his authority, being an employee of the Fire Companies Adjustment Bureau, Inc., of Atlanta, Georgia,' came to see plaintiff and discuss the question of the accident and 'after receiving a full statement from the plaintiff, the defendant's said adjuster instructed the plaintiff to have his car towed to the Columbus Body & Fender Works, at Columbus, Georgia, for an inspection and estimate of damages, which the plaintiff did at a cost of $15.00 to him.' The count then concludes, 'And plaintiff avers that under the foregoing allegations of fact there was a promise made by the defendant, its agents, servants or employees, while acting within the line and scope of their authority, to plaintiff, for a valuable consideration, namely, $15.00, to pay the loss herein sued on; hence this suit.'
The count then adopted as a part thereof 'all of the provisions of said policy by attaching the original hereto and expressly making it a part hereof as if set out in haec verba.'
The defendant pleaded the general issue and at the conclusion of the evidence which included plaintiff's Exhibit No. 1, the insurance policy issued by the defendant to the plaintiff, and evidence showing without dispute that the automobile was destroyed by collision at 4:45 P.M. on February 7, 1944, the court at the request of the defendant in writing gave the following written charges:
'The court charges the jury if you believe the evidence you cannot find for the plaintiff under Count 1 of plaintiff's complaint. * * *
'The court charges the jury that the policy of insurance introduced in evidence as Plaintiff's Exhibit No. 1 expired at 12:01 A.M. February 7, 1944. * * *.'
The court refused the general affirmative charge requested by the defendant.
The policy contained the following provisions:
'Item 2. Policy period: From February 7, 1943 to February 7, 1944 12:01 A.M., standard time at the address of the insured as stated herein.
'Item 3. In consideration of the payment of the premium and in reliance upon the statements in the declarations and subject to the limits of liability, exclusions, conditions and other terms of this policy, the company agrees to pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, sustained during the policy period, with respect to such and so many of the following coverages as are indicated by specific premium charge or charges:
Insurance Co. By Alleen Davidson, Agent.
To continue reading
Request your trial
-
Inland Mut. Ins. Co. v. Hightower
...242 Ala. 440, 6 So.2d 513; Jones v. Liberty National Life Insurance Co., 35 Ala.App. 52, 58, 47 So.2d 222; Union Marine & General Insurance Co. v. Holmes, 249 Ala. 294, 31 So.2d 303; Hanover Fire Insurance Co. of N. Y. v. Salter, 254 Ala. 500, 49 So.2d 193; Mutual Savings Life Insurance Co.......
-
Earnest v. State
...insured against cannot harm nonexistent property. Continental Ins. Co. v. Dotson, 260 Ala. 499, 70 So.2d 796; Union Marine & General Ins. Co. v. Holmes, 249 Ala. 294, 31 So.2d 303; Barry v. Aetna Ins. Co., 368 Pa. 183, 81 A.2d 551; Kline Bros. & Co. v. Royal Ins. Co., C.C., 192 F. 378; Alli......
-
Carroll v. Preferred Risk Ins. Co.
...countersigned.' (Simons v. American Fire Underwriters of American Indem. Co., 203 S.C. 471, 27 S.E.2d 809; Union Marine & General Insurance Co. v. Holmes, 249 Ala. 294, 31 So.2d 303; Pruitt v. Great American Insurance Co., 241 N.C. 725, 86 S.E.2d 401; Burdick v. California Insurance Co., 50......
-
Bourne v. Seal
...of waiver and estoppel will not operate to create a contract that never existed.' The same result occurred in Union Marine & General Ins. Co. v. Holmes, 249 Ala. 294, 31 So.2d 303, except that in that case, as in the present one, a policy had been duly executed and approved. The expiration ......