Commercial Casualty Ins. Co. v. Hubert

• Decision Date: 23 March 1933
• Docket Number: 6 Div. 314.
• Citation: 147 So. 134,226 Ala. 357
• Parties: COMMERCIAL CASUALTY INS. CO. v. HUBERT.
• Court: Alabama Supreme Court

147 So. 134

226 Ala. 357

COMMERCIAL CASUALTY INS. CO. v. HUBERT.

6 Div. 314.

Supreme Court of Alabama

March 23, 1933

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Action on a policy of liability insurance by A. T. S. Hubert against the Commercial Casualty Insurance Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals.

Affirmed.

London Yancey & Brower and Whit Windham, all of Birmingham, for appellant.

Foster Rice & Foster, of Tuscaloosa, for appellee.

FOSTER Justice.

This is an action on a policy of liability insurance by the insured against whom plaintiff claims that a liability was fixed by the judgment of a court of competent jurisdiction. Plaintiff paid the judgment and seeks to be reimbursed for so doing.

Appellant insists that count 1, which is the only count on which the case was tried (count 2 was withdrawn), does not sufficiently show the terms of the policy, or the period of its duration, and that its averment that the policy was in full force and effect is the conclusion of the pleader, as declared in National Life & Accident Ins. Co. v. Hannon, 212 Ala. 184, 101 So. 892, following several of our cases. But we note that those cases were controlled by the Code of 1907 (section 5382, form 12), and not that of 1923 (section 9531, form 12). In them emphasis is made upon the requirement in the form (No. 12) that the term covered by the policy be averred. But when that form went into the Code of 1923, effective August 17, 1924, that feature of it was omitted. Sov. Camp, W. O. W., v. Gunn, 224 Ala. 444, 140 So. 410. While that form is not strictly applicable to the nature of the policy here involved, its requirements and omissions of averment are usually treated by analogy as applicable to complaints on insurance contracts, though of a different sort. Police & Firemen's Ins. Ass'n v. Crabtree, 215 Ala. 36, 109 So. 156; Modern Order of Praetorians v. Wilkins, 220 Ala. 382, 125 So. 396.

Since the form has thus been changed, this court in Sovereign Camp, W. O. W., v. Gunn, supra, held that an averment that the policy was at a certain time in full force and effect was not subject to the objection that it expressed the conclusion of the pleader, but that if it were so held, an admission during the trial that the policy was paid up (or then in force) would render the ruling innocuous. And in Bankers' Credit Life Ins. Co. v. Lee, 224 Ala. 398, 140 So. 609, with respect to lack of averments of the date of the policy, and whether it was in effect when insured died, it was observed that defendant had possession of the policy and knowledge of its date and when it took effect, and there was no injury sustained by defendant in respect to such uncertainty of averment.

Plaintiff introduced in evidence the answers of defendant to interrogatories, and in them it is stated that the sample copy of the policy attached was believed by it to be a true copy of that issued to plaintiff by defendant to cover his automobile, and further that it was in force and effect at the time he had the collision with the automobile operated by Fred Smith. That collision was the basis of the suit.

From this it is made to appear that there was no reversible error in respect to such ground of demurrer to count 1, for by defendant's answers to such interrogatories it appears that it knew the provisions of the policy and its terms to the extent here pertinent, and that it was then in force. Plaintiff did not produce the policy on the trial, but testified that it was lost, and he did not know where it was that he put it in a drawer and forgot it. Over objection of defendant he was allowed to testify to its contents. Whether his evidence was subject to the objection that it does not show sufficient diligence in making a search for it, nor in fact where any search was made, Whitsett v. Belue, 172 Ala. 256, 54 So. 677, we think that if there was error it was rendered harmless for the following reason: We have shown that plaintiff had propounded interrogatories to defendant. In them defendant was called upon to attach to its answers a correct copy of the policy issued by it to plaintiff. The answer, which was introduced in evidence, was that defendant did not have a copy of the policy but attached a sample copy, which it alleged it believed to be a true copy and that it was in effect when the collision occurred. This sample copy thus put in evidence contains the clauses relied on by plaintiff to sustain his action, as to which he had testified, also those on which defendant relied to sustain a forfeiture, or such breach by plaintiff as to prevent a recovery. This had the effect of making such copy an effectual cure...