Fidelity-Phenix Fire Ins. Co. of New York v. Murphy, 1 Div. 731.

• Citation: 226 Ala. 226,146 So. 387
• Decision Date: 19 January 1933
• Docket Number: 1 Div. 731.
• Parties: FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK v. MURPHY.
• Court: Supreme Court of Alabama

146 So. 387

226 Ala. 226

FIDELITY-PHENIX FIRE INS. CO. OF NEW YORK v. MURPHY.

1 Div. 731.

Supreme Court of Alabama

January 19, 1933

Rehearing Denied March 9, 1933.

Appeal from Circuit Court, Mobile County; J. Blocker Thornton Judge.

Action on a policy of protection and indemnity insurance by John G Murphy against the Fidelity-Phenix Fire Insurance Company of New York. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Pillans Cowley & Gresham, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

FOSTER Justice.

This is an action on a contract of "protection and indemnity," against liability for and the payment of any sum incurred and paid by plaintiff for loss or damage to goods, etc., on board of plaintiff's steamboat Rose Murphy, which, with its cargo, was lost or foundered at sea. The complaint alleged such loss of the ship, his liability for and payment of a definite sum for the goods, etc., which were lost with the ship and which were the property of another.

The court sustained demurrer to pleas 4 and 5, as last amended. Such ruling is the first matter submitted for our consideration.

Plea 4 as thus amended alleges that plaintiff "voluntarily, wilfully and intentionally, sank the steamship 'Rose Murphy,' * * * whereby and as a proximate consequence of said sinking the said steamship and her cargo of phosphate rock were wholly lost," and that "the sinking and loss of said steamship and cargo by plaintiff as aforesaid was voluntarily, wilfully and intentionally done by plaintiff."

Amended plea 5 alleges that plaintiff had a separate policy of insurance against the loss or destruction of the ship, which he owned, and he entered into a conspiracy with others named for them to sink and totally lose and destroy the vessel and cargo for the purpose of collecting the insurance upon the ship and also for the purpose of defrauding defendant in causing it to repay plaintiff any sum paid by him to the owner of the cargo, and that pursuant to said agreement his said conspirators did destroy said ship and her cargo at sea, and as a consequence plaintiff incurred and paid to the cargo owner the sum named in the complaint.

There were only four grounds of demurrer assigned to pleas 4 and 5, as last amended. While the argument of counsel is addressed largely to contentions which are scarcely embraced in the assignments, it is necessary to view the pleas, first, in the light of those assignments as we interpret them.

The cause was tried on only one count, and therefore it is only in answer to it that the pleas undertake to defend. There is no uncertainty as to the count to which the pleas are addressed, and the first ground of demurrer is not meritorious.

But it is urged in argument that the second ground of demurrer is well taken, because they are essentially pleas in confession and avoidance, and do not confess, though they attempt to avoid by matter which can only be pleaded in that form.

In order that there may be no uncertainty as to our views on that subject, we wish to make them clear, and definite, that if a plea avers good matter in avoidance of the complaint, which is consistent with its allegations, and does not expressly deny them or any of them, but does not expressly admit them, there is necessarily implied for the purposes of that plea a confession of the complaint thus answered, as effectually as if it were so expressed. But if the substance of the plea is inconsistent with the complaint, it is but an expression of the particular claim of the defendant as to why the complaint is not true, and which is embraced in the general issue. We do not think we run counter to our cases, or any of them, thus to conclude, but feel that they are consistent with this result, and that it naturally follows from our statutory system.

At common law an expression of confession in such a plea was as essential as good matter in avoidance. But the question now is under our statutory practice, and modern conception of pleading. Section 9457, Code, provides for brevity in pleading as is consistent with perspicuity, with no objection to defect of form; and section 9469 that pleas must consist of a succinct statement of facts, and it is not objectionable if the facts are so stated that a material issue may be taken; and section 9470 that if defendant does not rely solely on a denial of the cause of action, he must plead specially the matter of defense; and section 9479 that demurrer to a plea must relate to matter of substance. Looking at the forms set out in article 20, Code (sections 9531, 9532), we find that none of the pleas, which are in substance by way of confession and avoidance, expressly confess the count or complaint to which it is directed. This court has held that such a plea is subject to demurrer if it expressly denies the cause of action; though it sets up good matter in avoidance. Central of Georgia R. Co. v. Williams, 200 Ala. 73, 75 So. 401.

In the case of Birmingham Ry., L. & P. Co. v. Yates, 169 Ala. 381, 387, 53 So. 915, 917, referring to a plea of contributory negligence, and holding that it is by way of confession and avoidance, it is said: "Nor does the fact that the plea or some part of it may, directly or inferentially, deny or fail to deny some part of the complaint, make it bad, if it otherwise sets up facts and matters which are of themselves a complete defense to the action."

But in Smith Bros. & Co. v. W. C. Agee & Co., 178 Ala. 627, 634, 59 So. 647, Ann. Cas. 1915B, 129, in passing on a plea to a complaint for defamation, it was held to be defective because it did not confess an utterance of the words charged, but the plea contained the averment that "if the alleged words were spoken at all" by defendant, etc. So that there was no room for an implication of a confession. On the other hand, the rule is elsewhere stated that the "confession need not be formal or express, if it be impliedly in, or inferable from, the matter set forth in the plea." 48 Corpus Juris 293; 21 R. C. L. 546. The notes (in 49 Corpus Juris 293) indicate that in some states the confession is implied, when not otherwise stated, if the plea sets up affirmative matter which is legally sufficient to defeat the action, though it seems to be otherwise in other states. As pointed out in Woods v. Wood, 219 Ala. 523, 122 So. 835, in proceedings, whose pleadings are not as in common-law actions, a failure to deny matter in the petition is an admission of it. Such is the general rule. 49 Corpus Juris 275.

Pursuant to such views we think the ruling of the court cannot be sustained upon the second ground of demurrer.

The matters asserted in pleas 4 and 5 do not affect the legality of the contract as a whole, but in effect they are set up to show that it does not cover the transaction mentioned in the complaint, and that it is an implied exception from its general coverage because of the specially alleged conduct of plaintiff in connection with it. It has been customary, and we think properly so, to treat such defense as matter in avoidance and not a traverse of the complaint. Knights of Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332; Mutual Life Ins. Co. v. Lovejoy, 201 Ala. 337, 87 So. 299, L. R. A. 1918D, 860; United Order of G. C. v. Overton, 203 Ala. 335, 83 So. 59, 13 A. L. R. 672; Supreme Lodge, K. of P. v. Overton, 203 Ala. 193, 82 So. 443, 16 A. L. R. 649; 26 Corpus Juris 499 (note 88).

It does not fall within our rule that defendant may under the general issue impeach the validity of the contract sued on by proof of facts which show that the contract as a whole is void because contrary to public policy, or in violation of some law which so affects it. Wood v. Traders' Securities Co., 221 Ala. 629, 130 So. 398; Shearin v. Pizitz, 208 Ala. 244, 94 So. 92.

The defense is therefore consistent with the allegations of the complaint, and is not available under the general issue nor subject to the third ground of the demurrer.

Most of the argument is based apparently upon the fourth ground.

But it does not seem to us to be well taken. If the position be sound, as argued, that, because allegations that the willful and intentional sinking of the ship at sea and that the loss of the cargo is the proximate result of such willful act, without an allegation that the loss of the cargo was itself willful, and without an allegation of a willful loss of the cargo, there would be no defense in this connection, we think that pleas 4 and 5, as last amended, do sufficiently allege by express averment that the cargo, as well as the ship, was willfully lost or destroyed. Such pleas allege in substance that plaintiff, or his co-conspirators, pursuant to agreement with him, did willfully sink or lose both the ship and her cargo at sea.

But we do not think the argument of appellee in this respect is well founded, if it be conceded that the plea is as the assignment interprets it. As we will hereafter show, the merit of the defense is the willful act of plaintiff in causing the liability which he seeks to enforce against his indemnitor. The destruction of the ship and cargo was by one act at sea. It might be conceived to be possible to make prior provision to salvage the cargo without loss, or to sink the ship at a time and place where the cargo could be saved notwithstanding the loss of the ship. But we should put upon averments a fair interpretation of their meaning. The proper implication from an averment that one intentionally at sea opened the valves for the inflow of water, and caused the ship to sink with its cargo, is that it was not only a willful destruction of the ship, but also that it was known and intended that thereby the cargo would be lost, entailing a liability...