Christian v. Niagara Fire Ins. Co.

• Decision Date: 22 December 1893
• Citation: 14 So. 374,101 Ala. 634
• Parties: CHRISTIAN ET AL. v. NIAGARA FIRE INS. CO.
• Court: Alabama Supreme Court

14 So. 374

101 Ala. 634

CHRISTIAN ET AL. v. NIAGARA FIRE INS. CO.

Supreme Court of Alabama

December 22, 1893

Appeal from circuit court, Tuscaloosa county; S. H. Sprott, Judge.

Action by Christian & Daniel against the Niagara Fire Insurance Company on a fire policy. Judgment for defendant. Plaintiffs appeal. Affirmed.

The complaint contained three counts, as stated in the opinion. The defendant filed six pleas in answer to said complaint the substance of which was as follows: Plea No. 1. Answer to first count of complaint admits the execution of the policy alleged, and the liability of the defendant thereunder, and attaches the insurance policy as an exhibit, and makes the same a part of the plea, but denies that defendant is liable for the full amount claimed, but for a less amount, and tenders the amount admitted to be due. Plea No. 2. "The defendant saith that this defendant tendered to the plaintiffs the amount due to them, to wit, $387.21/100 before the action was commenced." Plea No. 3 denies each and every allegation of the complaint. Plea No. 4 denies each and every allegation of the second count of the complaint. Plea No. 6 is in answer to the second count; sets up the fact that, if there was a settlement of the amount due on the policy, it was made under a mistake of law and fact, and hence not binding; and sets out the policy as a part of said plea. The plaintiffs filed six demurrers to these pleas: The first was addressed to the first and third pleas, because of inconsistency; one admitting the execution of policy and liability thereunder, and tendering the amount due, while the other denied the execution. The second demurrer was addressed to the third plea, because it denied the execution of a written instrument on which suit was brought, and is not sworn to. The third demurrer was addressed to the first plea because it is not a sufficient plea of tender, in failing to aver that the amount had been always kept good from the time of making it. The fourth demurrer was also addressed to the first plea, because the same was insufficient as a plea of tender, in failing to aver a tender of the full amount, with interest. The fifth demurrer is addressed to the sixth plea because it sets up an immaterial issue and is an insufficient plea, because it alleges that the settlement was made under a mistake of law. The sixth demurrer is addressed to the same plea, because it sets up the facts on which the settlement and compromise were made, and fails to allege that said facts were not true, or that there was any mistake as to the facts on which said settlement was made. The court overruled each of these demurrers, and plaintiffs then filed nine replications to said pleas. The first replication was addressed to the first plea, and set up the fact that the insurance policy which was set forth in said plea did not contain and properly set forth the contract of insurance which plaintiffs made with defendant, and on which the suit is brought; that the contract on which this suit was brought was for 20 bales of cotton, at $45 per bale, in a certain warehouse, while that shown in the plea was different from this; and further that, since the making of the contract on which the suit was brought, defendant had changed said policy, without plaintiffs' knowledge or consent, by pasting onto said contract a clause limiting the liability of defendant under said policy. The second replication was addressed to the same plea, and set up substantially the same facts as the first, with the additional facts that defendant had stamped or written across and over said limiting clause so pasted on the policy, the words "Niagara Fire Insurance Co.," in large red letters, for the purpose of obscuring from plaintiffs said limiting clause, and that said letters did have the effect of obscuring said clause from plaintiffs, and prevented them from detecting or seeing said clause. The third replication is addressed to the same plea and sets up the fact that, after the loss had occurred under said policy, plaintiffs and defendant met for the purpose of adjusting and settling said loss, and that they did then adjust said loss, and agreed on the amount defendant should pay under said policy, and defendant agreed to pay said amount, and plaintiffs agreed to accept the same in full satisfaction of said claim, and that it was a greater amount than defendant now offers to pay. The fourth and fifth replications are substantially the same as the third, except they are clothed in different language, and addressed to the first and second pleas. The sixth and eighth replications set up the facts, and charge fraud on the part of defendant in altering and changing said insurance policy set up in said plea. The seventh replication to said first plea sets up a waiver of said limiting clause by defendant after the loss, and after a full investigation of all the facts and circumstances, and in settlement of the claim under the policy for the loss. The ninth replication to said first plea sets up the fact that said limiting clause, under said contract, was, by its terms, only to apply in case of other insurance on the property destroyed, and that hence said clause had no application in this case. On motion of defendant, each of said replications were stricken from the files, and plaintiffs forced to trial on said complaint and pleas. The testimony for the plaintiffs tended to show that, at the time they took out the policy of insurance on which this action was founded, there were stored in the warehouse 20 bales of cotton; that, when they went to the defendant's agent to get insurance, they told him they wanted a "straight policy" on their cotton, and that they never noticed the policy with the limitation clause pasted on the side of it until after the fire; that after the fire the agent of the defendant who issued the policy came to the plaintiff's place of business with one Williams, whom he introduced as the agent of the defendant, who had come for the purpose of adjusting and settling the loss; that the plaintiffs came to an agreement with the said Williams, by which the...