Franklin Fire Ins. Co. v. Slaton

• Decision Date: 20 February 1941
• Docket Number: 8 Div. 43.
• Citation: 240 Ala. 560,200 So. 564
• Parties: FRANKLIN FIRE INS. CO. v. SLATON.
• Court: Alabama Supreme Court

200 So. 564

240 Ala. 560

FRANKLIN FIRE INS. CO. v. SLATON.

8 Div. 43.

Supreme Court of Alabama

February 20, 1941

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

Action by N.W. Slayton against the Franklin Fire Insurance Company of Philadelphia, Pa., on a policy of fire insurance. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Coleman Spain, Stewart & Davies, of Birmingham, for appellant.

Brown &amp Conway, of Albertville, for appellee.

BROWN Justice.

This is the second appeal by the present appellant. Franklin Fire Ins. Co. of Philadelphia, Pa. v. Slaton, 236 Ala. 565 183 So. 865. The circuit court on the last trial instructed the jury:

"The defendant, gentlemen of the jury, comes up in answer to that and it says it is not indebted to Mr. Slaton and for several different reasons excuses itself from being liable in this claim here or this suit. First, they say that the building, if it was destroyed by fire that it was done either by Mr. Slaton or someone at his instance, in other words, through his agency; that is one of the defenses they set up here. They further say as a defense that he did not occupy the property at the time and his property was not in the building. That is another answer they set up here justifying themselves against a judgment. They say further that while the building was burning, and if he did not do it or procure it to be done, that he had an opportunity to save much of the property and maybe much of the building and the contents by going to his own rescue in an endeavor to put out the fire and that he silently walked by and did not make any effort whatever as he should have done under the contract, that it was his duty to protect himself as far as he could and he did not do so.

"Gentlemen of the jury, that is a brief outline of what the defenses are here and what the defendant insists here as a defense to this suit. You have heard the testimony, much of it here we have gone over for some time, you will have the policy out with you and other papers in connection with the contract and you are the sole judges of this testimony here."

The court also, at the request of the defendant gave the following special charges:

"Charge 8. If you are reasonably satisfied from all the evidence in the case that at the time of the fire the plaintiff and his wife were separated and were living apart in irreconcilable discord, and that plaintiff's wife had filed a suit for divorce against him, in which she sought an absolute divorce and alimony, including a division of the property insured, and the plaintiff himself was not living in or occupying the dwelling house, and the plaintiff had attempted to get his wife to remove from said house but she had declined to do so, then the Court charges you that the plaintiff is not entitled to recover."

"Charge 12. The Court charges you, Gentlemen of the Jury, that if you are reasonably satisfied from all the evidence in this case that at the time of the fire the dwelling house insured was occupied by plaintiff's wife but not occupied by plaintiff, that the plaintiff had removed therefrom and was occupying another house and that plaintiff had separated from his wife and that the plaintiff and his wife were living apart in irreconcilable discord, and that prior to the fire the plaintiff had attempted to get plaintiff's wife to remove out of said house and that plaintiff's wife had declined to do so, and that plaintiff's wife had filed suit for divorce against plaintiff in the Circuit Court of Marshall County, in which said suit plaintiff's wife was seeking an absolute divorce from him and also alimony, and at the time of the fire said suit was pending and undetermined, then the court charges you that the plaintiff is not entitled to recover and your verdict should be for defendant."

"Charge 20. If you are reasonably satisfied from all the evidence in this case that the plaintiff did not make any

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