Belt Automobile Indemnity Ass'n v. Ensley Transfer & Supply Co.

• Decision Date: 10 April 1924
• Docket Number: 6 Div. 816.
• Citation: 99 So. 787,211 Ala. 84
• Parties: BELT AUTOMOBILE INDEMNITY ASS'N v. ENSLEY TRANSFER & SUPPLY CO.
• Court: Alabama Supreme Court

99 So. 787

211 Ala. 84

BELT AUTOMOBILE INDEMNITY ASS'N v. ENSLEY TRANSFER & SUPPLY CO.

6 Div. 816.

Supreme Court of Alabama

April 10, 1924

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 &amp 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 law.In the event, therefore, that at the conclusion of

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