Georgia Home Ins. Co. v. Allen

• Decision Date: 29 October 1898
• Citation: 24 So. 399,119 Ala. 436
• Parties: GEORGIA HOME INS. CO. v. ALLEN.
• Court: Alabama Supreme Court

24 So. 399

119 Ala. 436

GEORGIA HOME INS. CO. v. ALLEN.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Limestone county; H. C. Speake, Judge.

Action by James W. Allen against the Georgia Home Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed.

This was an action brought by the appellee, James W. Allen against the Georgia Home Insurance Company, and counted upon a policy of fire insurance. The complaint contained two counts. The first count was as follows: "The plaintiff claims of the defendant the sum of seven hundred dollars ($700) with interest thereon, the value of his stock of merchandise, consisting of family groceries, confectioneries tobacco, cigars, cases, lamps and scales, and such other merchandise, not more hazardous, kept for sale, usual to such stocks, while contained in the one story of the brick one-story building, with metal roof, situated on the northeast corner of the public square in Athens, Alabama which the defendant, on January 5, 1894, insured against loss or injury by fire or other perils in the policy of insurance mentioned, for the term of one year next thereafter, which stock was destroyed by fire on November 27, 1894, of which the defendant had notice." The substance of the second count is sufficiently stated in the opinion.

The defendant filed three pleas. The first was the plea of the general issue; the second set up a breach of the iron-safe clause in the policy of insurance; and the third set up as a defense a breach of condition contained in said policy against the keeping of fireworks by the assured. It is not necessary, in the opinion on the present appeal, to set out any facts in reference to the third plea. The other pleadings are sufficiently shown in the opinion.

To the plaintiff's replication to the defendant's second plea, the defendant demurred upon the following grounds:

"(1) It is not shown in and by said replication that the said George G. Adams had power or authority to waive a forfeiture of said policy by a breach of a warranty and condition therein contained, which said breach had occurred prior to the attempted adjustment by the said Adams.

"(2) It appears from the defendant's second plea to which said replication is filed, that the said policy of insurance had become null, void and of no effect before the said George G. Adams undertook said examination and adjustment of said loss, and the said Adams could not by any act of his, revive, restore or give effect to said policy of insurance.

"(3) It is not averred in said replication that the defendant undertook to adjust or settle or examine said loss after it had knowledge of the breach of any condition or warranty in said policy.

"(4) It is not averred in said replication that the defendant sent the said Adams to examine or adjust said loss after it had knowledge or information that there had been a breach of any of the conditions or warranties in said policy.

"(5) For aught that appears in said replication said policy may have been rendered null and void and of no effect by a breach or breaches of the conditions and warranties therein contained, and entering upon an investigation or examination of said fire and loss after such breach or breaches, could not revive or give validity to such policy."

This demurrer was overruled, and to this ruling the defendant duly excepted.

On the trial of the cause, the plaintiff offered in evidence the policy of insurance which was issued by the defendant to the plaintiff. By this policy the plaintiff insured his stock of merchandise for $700, it being denominated as "mercantile" and described in the policy as follows: "700.00. On his stock of merchandise, consisting of family groceries, confectioneries, tobaccos, cigars, cases, lamps and scales and other such merchandise not more hazardous, kept for sale, usual to such stocks, while contained in the one story of the brick one-story building with metal roof, situated at No. 514, N.E. corner public square." This policy contained the iron-safe clause, the substance of which is stated in the opinion. Among the conditions contained in the policy, it was provided that "if gunpowder, *** fireworks, naphtha, *** are kept or used on the premises, without written consent, *** this policy shall be void." It was also stipulated that in case of loss, the assured shall give immediate notice thereof and shall render to the company a particular account of said loss under oath, stating the time, origin and circumstances of the fire, the occupancy of the building insured, the condition of the property insured, and the amount of other insurance, if any. It was further stipulated in said policy that if required, the assured shall produce the books of account and other proper vouchers, and exhibit the same for examination, either at the office of this company or such other place as may be named by its agent. This policy was issued on January 5, 1894, and was to expire January 5, 1895.

The plaintiff as a witness in his own behalf testified that on November 27, 1894, his stock of merchandise, which was in the store occupied by him at the time the policy of insurance was taken out, was wholly destroyed by fire. He was then asked the following question: "Were the cases, scales and lamps in the store?" To this question the defendant objected, because such articles inquired about were not shown to have been kept for sale in such store. The court overruled this objection, and the defendant duly excepted. The witness answered that they were, and also stated that they were the ones insured and mentioned in the policy, but were kept as store fixtures and not for sale. The plaintiff as a witness was examined at length in reference to the items which constituted his stock and the value thereof; also as to the inventory, the manner in which the books were kept and where they were at the time of the fire; but as no exception was reserved to the admissibility of any of this evidence, or as to the value of the goods as found by the jury, the evidence is omitted from this statement of facts. It was shown that due notice that the fire had occurred was given to the defendant and that proofs of loss in due form were sent to the defendant by the plaintiff within the time as required by the policy of insurance. It was further shown by the evidence that George G. Adams was the authorized adjuster of the company, and was sent by it to adjust the plaintiff's loss.

During the examination of the plaintiff as a witness, he testified that Adams was at the place of the fire shortly after the fire and investigated the circumstances connected with the fire. He was then asked the following question: "Did he (Adams) or not during the investigation and adjustment of the loss or previous to that time make any demand upon you for the proofs of loss, until some time after he looked into the matter?" To this question the defendant objected because it was immaterial. The court overruled the objection, and the defendant duly excepted. The witness answered, "He never asked for the proofs of loss at all. He examined it himself." On cross-examination the witness testified that he kept as cash book, blotter or day book, a ledger and a pocket memorandum book; that he made entries of sales upon the pocket memorandum book and when he got time he would transfer these entries from the memorandum book to the blotter, and from the blotter direct to the ledger. That he made these transfers of entries, once a week probably, and sometimes oftener; that at the time of the fire, four last days' sales had not been transferred to the ledger, and he had lost his pocket memorandum book and that the blotter had been left on his desk the night of the fire, which he sometimes did, and that the blotter was destroyed by the fire. That the blotter contained all entries of his sales and purchases, and the blotter was the only book in which he made entries of goods bought and sold on credit. That he transferred the entries from the blotter to the ledger sometimes every day, and sometimes once in three days, and sometimes not until the end of a week. That the blotter showed the amount of goods used out of the store by himself and family and for a part of the time, but that for the months of September, October and November, 1894, he made no entries in the blotter or elsewhere of the goods or cash used out of the store by himself and family. That the blotter which was destroyed in the fire had on it entries for several days which had not been transferred to the ledger, and that Mr. Adams and himself estimated the amount of the sales made during those several days, for which no entries appeared on account of the blotter being destroyed, by the amount of previous sales made in the same length of time. That his pocket memorandum book was lost some time previous to the fire and he had not replaced this memorandum book by another. On redirect examination this witness testified, that in adjusting the loss, he and Mr. Adams allowed $70 for the goods used in the three months mentioned by himself and family. That the sales during the four days just previous to the fire were not entered up on the ledger and were estimated by comparison with previous sales; that these four days' sales were entered on the blotter that was destroyed by fire. That the sales from the 21st of October to the 1st of November were entered up on his pocket memorandum book, which was lost before the entries were transferred to any other book. That he could not find this pocket memorandum book, and that after the loss of this book, he quit using a pocket memorandum book, and made all the entries directly in the blotter. That the amount of sales shown by the pocket memorandum book, which was lost, and also...