Clark v. Hartford Fire Ins. Co.

• Decision Date: 24 March 1949
• Docket Number: 8 Div. 487.
• Citation: Clark v. Hartford Fire Ins. Co., 252 Ala. 84, 39 So.2d 675 (Ala. 1949)
• Parties: CLARK v. HARTFORD FIRE INS. CO.
• Court: Alabama Supreme Court

39 So.2d 675

252 Ala. 84

CLARK v. HARTFORD FIRE INS. CO.

8 Div. 487.

Supreme Court of Alabama

March 24, 1949

Marion F. Lusk, of Guntersville, for appellant.

F. W Davies and Davies & Williams, all of Birmingham, for appellee.

Counts 2 and 3 as originally filed were as follows:

'Count Two

'Plaintiff claims of defendant Twenty-five hundred Dollars ($2500) due by an account stated between the plaintiff and the defendant on the 27th day of August 1947, which sum of money with interest thereon from August 27, 1947 is due and unpaid.

'Count Three

'Plaintiff claims of defendant Twenty-five hundred Dollars ($2500) due by the following letter written by defendant's Southern Department Manager to plaintiff on February 10, 1947 in words and figures as follows: * * *

'Dear Sir:

Re Fire of November 8, 1946

PolicyNo. 3422

Chester F. Raines, Agent,

Albertville Alabama Agency

................................................................................

* * *

'We have forwarded your letter of February 5 to Mr. Irvin T. Cobb, Adjuster of the Fire Companies' Adjustment Bureau, Incorporated, at Birmingham, Alabama who is looking after the adjustment of this claim for us.

'Yours very truly,

W. R. Prescott, Manager.'

and a letter written by defendant's agent or adjuster, or attorney in fact Irvin T. Cobb to plaintiff's attorney Marion F. Lusk on May 19, 1947 in words and figures as follows: * * *

'Dear Mr. Lusk:

Re: Loss--Clark Manufacturing Company

Albertville, Alabama

Fire of November 8, 1946

Hartford Fire Insurance Company

PolicyNo. 3422

................................................................................

* * *

'This will acknowledge receipt of your letter of May 16, 1947 regarding the above captioned claim.

'Upon receipt of Mr. Clark's letter we wrote the Hartford Fire Insurance Company for specific instructions.In the same mail with your letter we received a letter from the Company instructing us to proceed with the adjustment of the claim.

'Enclosed is Proof of Loss making claim in the amount of $2,500.00 against the Hartford Fire Insurance Company.Please have Mr. Clark execute this Proof and return to us for submission to the Company.

'The Albertville National Bank holds a note signed by Mr. Clark and Mr. Stocks which is secured by certain materials.Please have the bank advise us if any of the property covered under this policy is a part of the above mentioned materials and, if it is, it will be necessary that we recommend the bank's name be included in the draft.Advise if you wish your name included in the draft.

'Yours very truly,

'Irvin T. Cobb, Adjuster.'

and a letter written by defendant's agent or adjuster or attorney in fact Irvin T. Cobb to plaintiff's attorney Marion F. Lusk on August 27, 1947 in words and figures as follows: * * *

'Dear Mr. Lusk,

Re: Loss--Clark Manufacturing Company

Machinery and Equipment

Albertville, Alabama

November 8, 1946

Hartford Fire Insurance Company

PolicyNo. 3422

Albertville, Alabama Agency

................................................................................

* * *

'This will acknowledge receipt of your letter of August 26, 1947, regarding this claim.

'The Proof of loss has been mailed to the Southern Department of The Hartford Fire Insurance Company at Atlanta, Georgia., and draft in payment of the claim will be mailed from there.

'Yours very truly,

'Irvin T. Cobb, Adjuster.'

Which sum of money with the interest thereon from August 27, 1947 is due and unpaid.'

Count 2 was amended by adding thereto the following:

'That said stated account is based upon three letters, one from Hartford Fire Ins. Co. to plaintiff dated at Atlanta, Ga., February 10, 1947 signed by W. R. Prescott, Mgr., the second from Fire Companies Adjustment Bureau, Inc., to plaintiff dated at Birmingham, Ala., May 19, 1947 signed by Irvin T. Cobb, Adjuster, and a third letter from Fire Companies Adjustment Bureau, Inc., to plaintiff dated August 27, 1947 signed by Irvin T. Cobb, Adjuster; said letters constituting a written contract for the payment of $2500 by defendant to plaintiff, and purporting to be executed by the defendant, its agents or attorneys in fact.'By further amendment the following was added to count 2:

'Said letters are fully copied and set forth in CountNo. 3, to which demurrer has been sustained, but which is hereby refiled for the express purpose of being referred to and made a part of this Count.'

The following was added by amendment to count 3:

'That said letters constituted a settlement in writing made in good faith for the composition of a debt of $2500 claimed by plaintiff to have been owing to him by defendant since November 1946.'

SIMPSON Justice.

The plaintiff has appealed from a judgment of nonsuit, assigning for error the adverse rulings of the court sustaining demurrer to Count 2, as amended, and to Count 3 of the complaint.

Count 2, as amended, was on an account stated, which in effect, setting out the quo modo or basis of the action (We have disapproved this method of pleading.Ingalls Steel Products Co. v. Foster & Creighton Co., 226 Ala. 122[4], 145 So. 464), claimed on an alleged agreement of an adjustor appointed by the defendant company 'to look after the adjustment of the claim' under a policy purportedly held by the plaintiff whereby the adjustor agreed to settle the claim for $2500.The said agreement is based on certain letters set out in the count written by the company and the adjustor, indicating a claim of some kind by the plaintiff, and a policy (we must assume a fire insurance policy) identified and described only by its number, a fire on a certain date, the appointment of the adjustor to look after adjusting the claim, an adjustment by him for $2500, the execution by the plaintiff of the proof of loss for said amount, and the adjustor's statement that the check would be mailed to the plaintiff from the defendant's divisional office.

Count 3 was ex contractu, based on the same correspondence and allegation that the $2500 was due and unpaid.

The several letters, as material, will be reported with the case.

Having thus set out the facts, they must show a right of recovery and, under the recognized rule, construing them most strongly against the pleader, we must hold the complaint lacking in the requisite allegations and subject to several of the grounds of demurrer.

It will be observed that the character or terms of the policy are not indicated nor are they material, since the action is not on the policy but on a subsequent, new, and different agreement to pay a sum of money.It is rested on an alleged promise to pay a loss claimed under a policy after the loss has occurred, and to be actionable must be supported...