Franklin Fire Ins. Co. of Philadelphia, Pa., v. Slaton
| Decision Date | 13 October 1938 |
| Docket Number | 8 Div. 870. |
| Parties | FRANKLIN FIRE INS. CO. OF PHILADELPHIA, PA., v. SLATON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
Action on a policy of fire insurance by N.W. Slaton against the Franklin Fire Insurance Company of Philadelphia Pennsylvania. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Coleman Spain, Stewart & Davies, of Birmingham, for appellant.
Brown & Conway, of Albertville, for appellee.
Suit by N.W. Slaton, appellee, against the appellant, Franklin Fire Insurance Company, on a policy of fire insurance.
The policy contract insured the appellee against direct loss or damage by fire and lightning to an amount not exceeding Two Thousand, Four Hundred and Fifty Dollars, distributed as follows, so far as here pertinent: $1200 on appellee's dwelling, $300 on household and personal effects "belonging to insured and all members of insured's family, usual or incidental to the occupancy of the premises by the insured as a dwelling * * *; $100.00 on one story metal roof stone smokehouse * *."
The plaintiff stated his case in one count, which reads: "The Plaintiff, N.W. Slaton claims of the defendant, The Franklin Fire Insurance Co. of Philadelphia, Penn., a stock company, doing business in the State of Alabama, the sum of Sixteen Hundred ($1600.00) Dollars, the value of a dwelling house and smoke house, which the defendant, on the 19th day of October 1936, insured against loss or injury by fire and other perils in the policy of insurance mentioned, for the term of: from the Tenth day of Oct. 1936, at Twelve O'clock Noon (Standard time) to the Tenth day of Oct. 1941, at Twelve O'clock Noon (Standard Time) which house and smoke house were wholly destroyed by fire on the 9th day of December 1936, of which the defendant has had notice."
The defendant pleaded in short by consent the general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action, to have effect as if so pleaded. Briefly stated these special defenses were: (1) That the property was wilfully burned through the design or procurement of the plaintiff, insured; (2) that in the policy sued upon the property was insured only while occupied by tenant, and that at the time of the loss the property was not so occupied; (3) that the hazard was increased by means within the knowledge of the insured contrary to the provisions of the policy; (4) that the loss, or damages, or a part thereof, was caused directly or indirectly by the neglect of the insured to use all reasonable means to save and preserve the property at and after the fire; (5) for breach of warranty against flues built with brick-on-edge.
The policy offered in evidence covered, and was intended to cover, a dwelling house owned and occupied by the insured and family, and also a separate house owned by the insured but occupied by tenant. We so construe the policy, notwithstanding in another part of the policy there is a recital that the property was owned by insured "and occupied by tenant." Such construction removes all ambiguity, and is the only reasonable construction that can be given the contract.
It is obvious from a reading of the complaint that the claim therein made for damages is for the destruction by fire of the dwelling house and smoke house. No claim is made for loss of any household and personal effects.
The defendant duly reserved an exception to the following portion of the court's oral charge: "If the plaintiff, Gentlemen of the Jury, if his contentions are true then of course he would be entitled to recover because if the house was burned not by him or any agent of his or any one he procured to burn it and he did not have anything to do with it whatever and if it was burned from some other cause except by his agency, then he is entitled to recover the amount that he is due under the proof made of the policy offered in evidence."
There was evidence in the case tending to support...
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