Appeal
from Circuit Court, Jefferson County; D. A. Greene, Judge.
Action
by the Ensley Transfer & Supply Company against the Belt
Automobile Indemnity Association. Judgment for plaintiff, and
defendant appeals. Affirmed.
The
action is brought by the appellee, the Ensley Transfer &
Supply Company against the Belt Automobile Indemnity
Association, appellant, on an automobile liability policy
issued by it. The cause was tried on counts 4 and 5 which are
substantially alike. Count 4 is as follows:
Count
4. "The plaintiff, Ensley Transfer & Supply Company, a
corporation, claims of the defendant, the Belt Automobile
Indemnity Association, a corporation or association, engaged
in the business of fire, theft, and indemnity automobile
insurance, in the state of Alabama, the sum of $2,500, as
damages, for the breach of an insurance policy or contract
entered into on, to wit, the 10th day of November, 1919
under the terms of which the defendant, in substance, agreed
to indemnify the plaintiff against loss arising or resulting
from claims, or any legal liability imposed upon the insured
for damages, on account of bodily injuries, accidentally
suffered or alleged to have been suffered while such policy
is in force, including death resulting at any time therefrom
by any person or persons, by reason of the ownership,
maintenance, or use of any of the automobiles enumerated or
described in said policy.
"And
plaintiff avers that while said insurance policy was in force
a motor vehicle or automobile truck therein mentioned and
described collided with or ran upon or against one Henry
Alexander, and as a result of such collision the said Henry
Alexander received personal injuries, and that, on account of
said injuries to said Alexander, a claim for damages was made
upon the plaintiff, of which the defendant has had notice,
and thereafter a suit was entered by the said Alexander
against the plaintiff in the circuit court of the Tenth
judicial circuit of Alabama, of which the defendant had
notice, and which suit the defendant defended, and that a
judgment was rendered on the verdict of a jury in said cause
against the plaintiff, and in favor of the said Henry
Alexander, in the sum of, to wit, $1,250. Plaintiff avers
that defendant failed or refused or declined to pay said
judgment, and that thereupon plaintiff through its attorneys
made a motion for a new trial in said cause, and, upon the
overruling of said motion for a new trial, prosecuted an
appeal to the Supreme Court of Alabama, which last-named
court affirmed said cause, and plaintiff avers that on
account of such verdict and judgment plaintiff was forced to
pay to the clerk of the circuit court, Tenth judicial circuit
of Alabama, the sum of $1,645.70, which included said
judgment, penalty, and said court costs. Plaintiff avers that
on account of the failure of the defendant to defend said
cause, after the rendition of the judgment therein, it was
necessary for plaintiff to procure the services of an
attorney to prosecute the motion for a new trial and to
prosecute the appeal to the Supreme Court of Alabama, and
that it has incurred expenses in the sum of $300 for the
reasonable value of the legal services of such attorneys in
said case.
"Plaintiff
avers that it has in all respects complied with the terms and
provisions of its contract, and that the defendant has
breached said insurance policy, or insurance contract, in
that, although it was the duty of the defendant, under the
terms of said contract, to defend said suit, and to indemnify
plaintiff against loss or damage therefrom, yet the defendant
failed and refused to defend said suit, in that defendant
failed or refused to make a motion for a new trial in said
cause, after the rendition of the judgment against plaintiff
therein, or to prosecute an appeal to the Supreme Court in
said cause, or to indemnify plaintiff against loss or damage
on account of such verdict and judgment, in that defendant
refused either to further prosecute the defense of said
cause, or to pay the judgment rendered against plaintiff in
said cause."
Defendant
pleaded the general issue, and also plea 3, as follows:
"The
defendant says that said suit is on a policy of insurance
claimed to have been issued by the defendant to the
plaintiff, and defendant avers that liability to said
Alexander, for which the said Alexander obtained judgment
against the plaintiff, was imposed upon plaintiff by the
Employers' Liability Law of the state of Alabama, and
defendant avers that such claim was not covered by the
policy sued on, for that the following exclusion was
obtained in said policy, namely: 'Exclusions: A. This
contract does not cover loss resulting or arising from any
of the following causes or while said automobile is being
used or maintained under any of the following conditions:
7. Loss from the liability imposed upon the subscriber by
any workmen's compensation or employers' liability
law, agreement, or plan."'
To plea
3 plaintiff specially replied:
"(5)
For further answer to the plea filed in said cause the
plaintiff says that the defendant by its conduct is now
estopped to deny liability under said insurance contract in
that, after suit was brought against plaintiff by said
Alexander on a complaint counting solely on the
Employers' Liability Act, defendant elected to defend
said suit through its attorneys and filed pleadings therein
in circuit court and assumed the control and direction for
the
defense of such action; and plaintiff avers that, relying
upon such course of action on the part of defendant, it
changed its attitude in that it did not employ its own
counsel to defend said suit and relinquish its right and
opportunity to make settlement with the said Alexander by
the payment to him of the approximate sum of $175 which
said Alexander was willing to take in settlement of said
claim against plaintiff; and plaintiff further avers that
it surrendered the control and conduct of the litigation
instituted by said Alexander against it to the defendant,
and that defendant conducted such litigation until judgment
was obtained against plaintiff in the suit of the said
Alexander in the circuit court on, to wit, June 10, 1920.
"(6)
For further answer to said plea the plaintiff says that
after investigation of the accident to Alexander the
defendant through its agent or attorney thereunto
authorized advised plaintiff that it would assume control
and conduct of said claim and that plaintiff was not liable
for damages to the said Alexander. Plaintiff further avers
that it surrendered conduct and control of said matter to
defendant and that on, to wit, the 4th of July, 1919, the
said Alexander advised plaintiff that he would settle said
cause or claim against it on the payment by plaintiff to
him of the sum of his doctor's bill and lost time which
amounted to, to wit, the sum of $175; and plaintiff avers
that it notified defendant's agent or attorney of such
opportunity to settle said claim within a few days after
such offer was made, and the defendant through its said
agent or attorney notified plaintiff that there was no
liability on plaintiff's part to said Alexander and
that the matter was in defendant's hand and not in
plaintiff's hand. Plaintiff avers that, acting on such
course of conduct on the part of defendant, it relinquished
its right to make such settlement and failed to make such
settlement on said terms, and plaintiff therefore avers
that defendant is now estopped and denies its liability
under said insurance contract."
Defendant
filed rejoinders 2 and 3, which are as follows:
"(2)
For that the following clause is contained in the policy
sued on, namely:
"'N.
No condition or provision of this contract shall be
altered or waived except by written indorsement attached
hereto and signed by the attorneys in fact; nor shall
notice to, or possessed by, any agent or other person be
held to effect a waiver or change in any part of this
contract. The personal pronoun herein used to refer to
the subscriber shall apply regardless of number or
gender.'
"And
defendant avers that no written indorsement signed by the
attorneys in fact, has been executed or attached to the
policy, nor have the said attorneys in fact ever agreed
in writing that the policy should cover liability imposed
under the Employers' Liability Law.
"(3)
Defendant for further answer says that suit was filed by
Alexander against the plaintiff on, to wit, October 9,
1919, and that on, to wit, March 17, 1920, defendant
wrote the plaintiff the following letter, namely:
"'March
17, 1920.
"'Boss
Livery Company. Ensley Transfer & Supply Company, 1808
Avenue F, Ensley, Alabama-Gentlemen: In re Henry Alexander
v. Ensley Transfer & Supply Co. The above case is set for
trial on March 30th next, before Judge Wilkerson at 9:30 a.
m. In preparing this case for trial, it develops that there
is a possibility that the plaintiff may attempt to
establish liability on you under the provision of the
Employers' Liability Act, which was in force in this
state at the time the accident in question took place. In
order that there may be no misunderstanding in the event
this situation arises, we desire to call your attention to
that part of your policy named "Exclusions," and
refer you particularly to No. 7, which provides that the
policy does not cover "loss from the liability imposed
upon the subscriber by any workmen's compensation or
employers' law, agreement or plan," the scope of
the coverage afforded in your policy merely being
protection against liability imposed on you under common
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