Bankers Fire & Marine Ins. Co. v. Draper
Decision Date | 13 January 1944 |
Docket Number | 8 Div. 207. |
Citation | 245 Ala. 653,18 So.2d 409 |
Court | Alabama Supreme Court |
Parties | BANKERS FIRE & MARINE INS. CO. v. DRAPER. |
Rehearing Denied June 22, 1944.
Appeal from Circuit Court, Morgan County; A. A. Griffith Judge.
Replication 9 and 11 to plea in abatement are in substance and effect that within 60 days after occurrence of the fire and more than 60 days before suit filed (Rep. 9) defendant sent or caused an adjuster to contact plaintiff, who, with full authority to bind defendant, investigate the loss and adjust same, informed plaintiff that said claim would be paid; and (Rep. 11) Lamar Penney, an agent of defendant with authority to solicit and receive applications for insurance for defendant, and to collect premiums and countersign polices informed plaintiff that his loss would be paid.
The following charges were refused to defendant:
Coleman, Spain, Stewart & Davies, of Birmingham, for appellant.
Newton B. Powell, of Decatur, for appellee.
This is the second appeal in this cause. 242 Ala. 601, 7 So.2d 299.
As on the first trial, without prejudice to the plea in abatement, the parties proceeded to an issue on the merits and by agreement the suit was tried on both the plea in abatement and in bar. There was a verdict and judgment for plaintiff, and the defendant appeals.
Matters in Abatement.
On the second trial, the lower court sustained plaintiff's demurrers to defendant's rejoinders, which were substantially the same rejoinders held demurrable by this court on the former appeal.
At the earnest insistence of appellant's counsel, we have again carefully considered the questions presented and find no reason for disturbing the former holding. There was no error in sustaining demurrers to the defendant's rejoinders, and assignments of error 5, 6, 7, 8 and 9 are without merit.
Assignment of error 28 is predicated upon the refusal of charge "E". The charge is based on the theory that plaintiff failed to produce evidence in support of replication No. 4. Replication No. 4 alleges that defendant's agent offered to pay only $650 in settlement of the claim. The plaintiff's evidence tended to prove an offer to pay only $650 for damage to the house, and $150 for damage to the furniture, both covered by the policy. The essence of replication No. 4 is defendant's refusal to pay the claim in accordance with the terms of the policy. The offer to pay only $800 in settlement of the claim is a refusal to pay the claim in accordance with the terms of the policy as much so as an offer to pay only $650. The variance is wholly immaterial, and it is not probable that the error, if any, affected the substantial rights of the defendant. Supreme Court Rule 45.
The foregoing evidence was also sufficient upon which to predicate the refusal of the general charge as to replication No. 4, and which refusal is made the basis of assignment of error 49. The same evidence justified the refusal of general charge numbered 7, assignment of error No. 34.
Assignments numbered 38 and 39 relate to refusal of charges 14 and 15, which are as follows:
The plaintiff testified: And further, That Mr. Penney was the general agent, with authority to bind the insurance company seems to be...
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