Feibelman v. Manchester Fire Assur. Co.

CourtSupreme Court of Alabama
Writing for the CourtHEAD, J.
Citation108 Ala. 180,19 So. 540
Decision Date14 January 1896
PartiesFEIBELMAN v. MANCHESTER FIRE ASSUR. CO.

19 So. 540

108 Ala. 180

FEIBELMAN
v.
MANCHESTER FIRE ASSUR.
CO.

Supreme Court of Alabama

January 14, 1896


Appeal from circuit court, Jefferson county; James J. Banks, Judge.

This action was brought on May 6, 1892, by the appellant, Mrs. E. Feibelman, against the appellee, the Manchester Fire Assurance Company, to recover insurance on property destroyed by fire. The original complaint, as shown by the return of the certiorari, was in words and figures as follows: "The plaintiff claims of the defendant the sum of fourteen hundred and three 00/100 dollars, being the value of loss by fire on fixtures, six hundred dollars; two pool tables, one hundred dollars each; and six hundred and three dollars on stock of wine, brandy, whisky, beer, tobacco, and cigars, and other merchandise,-as per adjustment with one Witherbee, the defendant's adjuster, which the defendant on the 3d of September, 1891, insured against loss or injury by fire, and other perils in the policy of insurance, for the term of one year, which said property was destroyed by fire on January 10, 1892, of which the defendant has had notice." On April 12, 1893, the complaint was amended by adding the following count: "The plaintiff claims of the defendant a further sum of $1,403, the value of fixtures, two pool tables, and a stock of merchandise, consisting of wine, brandy, whisky, beer, tobacco, and cigars, and other merchandise which the defendant on the 3d day of September, 1891, insured against loss or injury by fire, which said property was destroyed by fire on the 10th day of January, 1892, of which the defendant has had notice." To this complaint, as amended, the defendant demurred on the ground, first, that there is a misjoinder of causes of action, in that the first count is a suit upon an adjustment by the defendant, and the second is upon a policy of insurance. And to the second count of the complaint, the defendant demurred-First, because it does not specify with sufficient definiteness the fixtures and merchandise alleged to be destroyed by fire; and, second, because it is a total departure from the cause of action as set out in the first count of the complaint. This demurrer was overruled, and the defendant pleaded, in the first and second pleas, the general issue, and the denial of the allegations of the complaint, and the following special pleas: "(3) For further answer, the defendant says, before the fire named in the complaint, the plaintiff had disposed of the property alleged to have been destroyed. (4) For further answer, the defendant says that the property named in the complaint was not destroyed by fire, as alleged in the said complaint. (5) For further answer, the defendant says that, after the policy named in the complaint was issued, the plaintiff executed a mortgage upon the three pool tables, a part of the property insured, which rendered the said policy void, under the terms and conditions thereof. (6) For further answer, the defendant says plaintiff is not the owner of the policy of insurance sued on in this case. (7) For further answer, the defendant says the property named in the policy was destroyed through the fault of the plaintiff, and hence the plaintiff cannot recover in this suit. (8) For further answer, the defendant says that, after the policy named in the complaint was issued, H. A. Feibelman, to whom said policy was issued, executed a mortgage to the South Side Savings Bank, a body corporate, upon the three pool tables named in the complaint, the same being a part of the property insured, which rendered said policy void under the terms and conditions thereof. (9) For further answer, defendant says that, after the policy named in the complaint was issued and delivered, H. A. Feibelman, to whom said policy was issued, before he transferred the same, executed a bill of sale, thereby conveying to the South Side Savings Bank the three pool tables named in the complaint, a part of the property insured, which rendered said policy void under the terms and conditions thereof. (10) For further answer, the defendant says that, at the time the property named in the complaint was injured or destroyed by fire, the plaintiff did not own the policy of insurance upon which this suit is brought. (11) For further answer to the complaint, the defendant says that, at the time this suit was brought, the plaintiff was not the owner of the policy which is the foundation of this suit, under which it is alleged defendant adjusted plaintiff's loss at $1,403. (12) For further answer to the complaint, the defendant says that H. A. Feibelman, at the time of taking out the policy named in the complaint, misrepresented to defendant the true owner of the property alleged in the complaint to have been destroyed by fire. (13) For further answer to the complaint, the defendant says that the plaintiff never made proof of loss as required by the policy under which she sues. (14) For further answer to the second count of the complaint, the defendant says, by the terms of the policy sued on it is provided that no suit shall be maintained on said policy unless commenced within 12 months next after the fire; and defendant alleges that said count was filed more than 12 months next after the fire, more than 12 months next after the cause of action accrued by which plaintiff alleges the property named in the complaint was destroyed. (15) For further answer to the complaint, the defendant says that E. Feibelman, the plaintiff in this suit, was not at the time of the alleged loss or damage by fire the owner of the vinous, spirituous, and malt liquors claimed in the complaint to have been destroyed by fire. (16) For further answer to the complaint, the defendant says that, under and by the terms of the policy, it is provided that said entire policy shall be void if the interest of the assured in the property assured be not truly stated therein. And the defendant avers that the interest of H. A. Feibelman in the property insured was not truly stated; by reason whereof the said policy was void. (17) For further answer to the complaint, the defendant says that, in the policy of insurance sued on, it was provided, amongst other things, and stated, that the entire policy of insurance should be void if the insured concealed or misrepresented, in writing or otherwise, any material fact or circumstances concerning the insurance or the subject thereof, or if the interest of the insured in the property be not truly stated therein. And defendant avers that H. A. Feibelman, the person insured in said policy, and who transferred and assigned the same to the plaintiff, did conceal, in obtaining said insurance, a material fact from defendant, namely, that he concealed the fact that a bill of sale or chattel mortgage had, at the time of the making of said insurance, been given to one or more of the pool tables which are mentioned and set out and covered by said policy of insurance, by said H. A. Feibelman, who claimed to be the owner of said property at the time said policy was issued, to the South Side Savings Bank. (18) For further answer to the complaint, the defendant says that, in the policy of insurance sued on, it was provided, amongst other things, and stated, that the entire policy of insurance should be void if the insured concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof, or if the interest of the insured in the property be not truly stated therein. And defendant avers that the interest of the insured in said property was not truly stated therein, in this: that a bill of sale or chattel mortgage had been previously given by H. A. Feibelman, the person to whom said policy of insurance was issued, and who had since transferred or assigned the same to the plaintiff, of one or more pool tables mentioned in said policy of insurance, and covered thereby. (19) For further answer to the complaint, defendant says that, in the policy of insurance sued on, it was provided, amongst other things, and stated, that the entire policy of insurance should be void if the insured concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof, or if the interest of the insured in the property be not truly stated therein, or in case of any fraud or false swearing by insured touching any matter relating to said insurance or the subject thereof, whether before or after a loss under said policy. And defendant avers that the plaintiff did on the 21st day of January, 1892, before one D. C. Buckshaw, a notary public in and for the county of Jefferson, state of Alabama, after said loss is alleged to have occurred, under oath state, among other things, that plaintiff had renewed her license (meaning thereby a license to retail vinous, spirituous, and malt liquors, as required by the laws of the state of Alabama) for the year 1892, having done so on the 12th day of January, 1892. Defendant avers that said statement was made under oath before the said D. C. Buckshaw, a notary public, as aforesaid, and that said statement so made was rendered to this defendant with a view and for the purpose of collecting the insurance covered by the policy of insurance sued on, and that the same was false, (20) For further answer to the complaint, the defendant says that, in the policy of insurance sued on, it was provided, amongst other things, and stated, that the entire policy of insurance should be void if the insured concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof, or if the interest of the insured in the property be not truly stated therein, or in case of any fraud or false swearing by insured touching any matter relating to said insurance or the subject thereof, whether before or after a loss under said policy. And defendant avers that the...

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39 practice notes
  • Fortenberry v. State, 7 Div. 614
    • United States
    • Alabama Court of Criminal Appeals
    • March 22, 1988
    ...unfavorable to him, and to elicit from that witness the extent or character of his recollection. Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 19 So. 540, 547 (1896). "The trial court may, at any time before the evidence closes, permit a witness to correct, explain, or limit h......
  • Wadsworth v. State, No. 596
    • United States
    • Court of Appeal of Florida (US)
    • August 14, 1967
    ...of 'character.' Fine v. State, supra. It is the fact by which 'character' is proved. Feibelman v. Manchester Fire Assur. Co., 1896, 108 Ala. 180, 19 So. 540. Indeed, it is the only competent evidence to prove character, poor though it may be. Drunkenness or intoxication falls within the def......
  • Nuffer v. Insurance Co. of North America
    • United States
    • California Court of Appeals
    • August 5, 1965
    ...Ins. Co., 6 Cir., 32 F. 47, 50; Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 61 So.2d 19, 28; Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 19 So. 540, 548; Williams v. Fire Ass'n. of Philadelphia, La.App., 193 So. 202, 204; Austin v. Maine Farmers' Mutual Fire Ins. Co., 126 Me. ......
  • Hartford Fire Ins. Co. v. Clark, 8 Div. 597
    • United States
    • Supreme Court of Alabama
    • April 3, 1952
    ...Schwab case, supra, are Tubb v. Liverpool, London and Globe Ins. Co., 106 Ala. 651, 17 So. 615; Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 19 So. 540. Neither of those cases emphasize the fact that it is necessary to induce action for such fraud to constitute a good defense unde......
  • Request a trial to view additional results
39 cases
  • Fortenberry v. State, 7 Div. 614
    • United States
    • Alabama Court of Criminal Appeals
    • March 22, 1988
    ...unfavorable to him, and to elicit from that witness the extent or character of his recollection. Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 19 So. 540, 547 (1896). "The trial court may, at any time before the evidence closes, permit a witness to correct, explain, or limit h......
  • Wadsworth v. State, No. 596
    • United States
    • Court of Appeal of Florida (US)
    • August 14, 1967
    ...of 'character.' Fine v. State, supra. It is the fact by which 'character' is proved. Feibelman v. Manchester Fire Assur. Co., 1896, 108 Ala. 180, 19 So. 540. Indeed, it is the only competent evidence to prove character, poor though it may be. Drunkenness or intoxication falls within the def......
  • Nuffer v. Insurance Co. of North America
    • United States
    • California Court of Appeals
    • August 5, 1965
    ...Ins. Co., 6 Cir., 32 F. 47, 50; Hartford Fire Ins. Co. v. Clark, 258 Ala. 141, 61 So.2d 19, 28; Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 19 So. 540, 548; Williams v. Fire Ass'n. of Philadelphia, La.App., 193 So. 202, 204; Austin v. Maine Farmers' Mutual Fire Ins. Co., 126 Me. ......
  • Hartford Fire Ins. Co. v. Clark, 8 Div. 597
    • United States
    • Supreme Court of Alabama
    • April 3, 1952
    ...Schwab case, supra, are Tubb v. Liverpool, London and Globe Ins. Co., 106 Ala. 651, 17 So. 615; Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 19 So. 540. Neither of those cases emphasize the fact that it is necessary to induce action for such fraud to constitute a good defense unde......
  • Request a trial to view additional results

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