Calvert Fire Ins. Co. v. Phillips, 1 Div. 902

• Court: Alabama Court of Appeals
• Writing for the Court: JOHNSON
• Citation: 41 Ala.App. 610,145 So.2d 848
• Docket Number: 1 Div. 902
• Decision Date: 16 October 1962
• Parties: CALVERT FIRE INSURANCE COMPANY v. Claude G. PHILLIPS, d/b/a Phillips Motor Company.

Page 848

145 So.2d 848 41 Ala.App. 610 CALVERT FIRE INSURANCE COMPANY
v.
Claude G. PHILLIPS, d/b/a Phillips Motor Company. 1 Div. 902. Court of Appeals of Alabama. Oct. 16, 1962.

Jas. R. Owen, Bay Minette, for appellant.

Wilters, Brantley & Nesbit, Robertsdale, for appellee.

JOHNSON, Judge.

Appellee brought suit against appellant on a policy insuring against loss by theft. The case was tried by the court without a [41 Ala.App. 611] jury. Judgment was rendered for plaintiff and defendant appealed.

The complaint was as follows:

'The Plaintiff claims of the Defendant SEVEN HUNDRED DOLLARS ($700.00) the value of an automobile, which the Defendant, on the 5th day of November, 1960, insured against loss or injury be fire, lightning, transportation, theft and other perils in the policy of insurance mentioned, for the term of ONE (1) year, which automobile was stolen on, to-wit, the 16th day of February, 1961, of which the Defendant has had notice.'

The defendant pled the general issue. Plaintiff offered evidence to show the existence of the policy sued on and the loss of the automobile by theft. Defendant offered no evidence. The appellant argues the one assignment of error which, in substance, is that the court erred in rendering judgment for plaintiff, this for the reason that plaintiff failed to prove his complaint. Specifically it is insisted, there was a complete absence of proof that notice of loss had been given to defendant. The case of National Life & Accident Ins. Co. v. Winbush, 215 Ala. 349, 351, 110 So. 571, is authority for the proposition that an element of a prima facie case on a policy of insurance is proof of loss as required by the policy.

It is elemental that the burden is upon the plaintiff to prove his complaint. Central of Ga. R. Co. v. Cross, 192 Ala. 354, 68 So. 291. As we have shown, plaintiff alleged that notice of loss had been given to defendant.

Page 849

Appellee agrees that notice of loss to the insurer is required by the policy and does not contend that the giving of notice was proved. The contention is that it was the burden of insurer to plead and prove the defense of failure of notice or proof of loss. This contention has been decided adversely to appellee in Life Ins. Co. of Virginia v. Hanback, 250 Ala. 643, 35 So.2d 696, where it is said:

'The provisions of the policy introduced in evidence make proof of loss a condition precedent to recovery. When such a policy is sued on, the plea of the general issue...