Commercial Fire Ins. Co. v. Morris

• Decision Date: 30 January 1895
• Citation: 18 So. 34,105 Ala. 498
• Parties: COMMERCIAL FIRE INS. CO. v. MORRIS ET AL. [1]
• Court: Alabama Supreme Court

18 So. 34

105 Ala. 498

COMMERCIAL FIRE INS. CO. v. MORRIS ET AL. ^[1]

Supreme Court of Alabama

January 30, 1895

Appeal from district court, Colbert county; W. P. Chitwood, Judge.

Action by Thaddeus J. Morris & Co. against the Commercial Fire Insurance Company. There was a judgment for plaintiffs, and defendant appeals. Reversed.

The appellees, T. J. Morris & Co., brought the present action against the appellant, the Commercial Fire Insurance Company to recover damages sustained by the plaintiffs by reason of the destruction of their stock of goods by fire. In the first count of the complaint the plaintiffs claim $1,500 "due by contract entered into on the 29th day of November, 1891 by the defendant with plaintiffs, to insure the store fixtures," stock of goods, such as is usually kept in a drug store, etc., which fixtures, goods, etc., were destroyed by fire on February 15, 1891. In the second count the plaintiffs claim the same amount as "due by a contract made and entered into by the defendant on the 29th day of November, 1890, with the plaintiffs, to issue to the plaintiffs a policy of insurance to insure the fixtures," stock of goods, etc., contained in the storehouse occupied by the plaintiffs, which fixtures and stock of goods were destroyed by fire on February 15, 1891. In the third count of the complaint the plaintiffs claim of the defendant the sum of $1,500, the value of the store fixtures, stock of drugs, oils, etc., which were kept in a store occupied by the plaintiffs, and "which the defendant, on the 29th day of November, 1890, insured in a policy of insurance to the plaintiffs against loss or injury by fire for a term of one year," which fixtures, goods etc., were destroyed by fire on February 15, 1891, of which the defendant has had notice.

Defendant demurred to each of these counts of the complaint, on the grounds, among others, that the plaintiffs did not allege therein or show that there was any breach of the contract therein named on the part of the defendant by the failure to issue the policy. The demurrers to the first count of the complaint were sustained, and to the second and third counts they were overruled. The plaintiffs amended their complaint by adding a fourth count, in which they claimed the same amount named in the other counts, due by contract to insure their store, fixtures, stock of goods, etc., owned by them which contract was entered into between the plaintiffs and the defendant on the 29th day of November, and in this count they set out the way in which the contract to insure was entered into between the plaintiffs and the alleged authorized agent of the defendant. The defendant pleaded several pleas, which were, in effect, the general issue, and also to all of the counts of the complaint the statute of frauds, in that the alleged contract was not to be performed in one year, and was therefore void, because it was not in writing. On motion of the plaintiffs, the plea of the statute of frauds was stricken from the files, and to this ruling the defendant duly excepted.

On or about the 29th day of November, 1889, the appellees, plaintiffs below, insured with the appellant company their stock of certain goods, in a drug store, in a specified building, in Sheffield, for the sum of $1,500, which insurance was effected through and with the general agent of appellant at Sheffield, one S. S. Higgins, who, confessedly, then had authority for obtaining and making contracts of insurance. A policy bearing the date above mentioned, and expiring one year thereafter, was issued by appellant, through said agent, for this insurance, and delivered by said agent to appellees. The premium for this insurance was paid to Higgins by crediting against the same the amount of a small loss the insured had sustained in another building, under a previous policy from the same company, and by further crediting the account of Higgins with the appellees, under his direction, by the balance of the premium. The agent, Higgins, during the period covered by this policy entered into a partnership with one Ashe, and the firm became the agents of the defendant in the same manner that Higgins had previously been.

The evidence of appellees tends to show that, a short time before this policy expired. T. J. Morris, the active man of Morris & Co., saw Higgins, with whom all his insurance business had been conducted, and told him he wanted his policy renewed, to which Higgins assented; and afterwards Morris was told by him that the insurance had been made, whereupon Morris requested Higgins to come by their store, and he would settle for the premium, which Higgins agreed to do. The appellant's testimony tends somewhat to contradict this, although in many respects it is corroborative of that for appellees. It is claimed for the appellant that, before the time of the proposed renewal of the policy, Higgins & Ashe had ceased to be its agents at Sheffield, but no evidence of the revocation of their agency was offered, except the letter of November 17, 1890, no notice of which to the appellees is shown. This letter, which was written by the defendant to Higgins & Ashe in Sheffield, contained the following sentence: "We *** give instructions that no future business shall be assumed for us until all pending matters are closed." The witnesses for the appellant testify, that this letter was the only revocation of their agency for the company. Various objections were made by appellant to the introduction of certain testimony by plaintiffs. These objections are all directed against evidence of statements by Higgins, as agent of the appellant, after, as insisted, he had ceased to be such agent, and to the introduction of the policies for former years, and the previous dealings of the assured, in respect to their insurance and policies, with such agent.

There were many exceptions reserved by the defendants to the rulings of the court upon the evidence, and there were many charges given at the request of the plaintiffs, and many charges asked for the defendant were refused. It is deemed unnecessary to set out these several rulings in detail. There was judgment for the plaintiffs, from which judgment the defendant appeals, and assigns as error the rulings of the trial court to which exceptions were reserved.

J. B. Moore and Jackson & Sawtelle, for appellant.

Rouehac & Nathan, for appellees.

COLEMAN J.

The plaintiffs, Morris & Co., sued the defendant upon an insurance contract to recover damages sustained in the loss of drugs, merchandise, etc., destroyed by fire. There are several counts in the complaint, one or more counting upon an agreement to insure, another...