Georgia Home Ins. Co. v. Allen

• Decision Date: 23 January 1901
• Citation: 128 Ala. 451,30 So. 537
• Parties: GEORGIA HOME INS. CO. v. ALLEN. [1]
• Court: Alabama Supreme Court

30 So. 537

128 Ala. 451

GEORGIA HOME INS. CO. v. ALLEN. ^[1]

Supreme Court of Alabama

January 23, 1901

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. Affirmed.

The defendant pleaded the general issue and the following special plea: (2) "For further answer to said complaint defendant says that in and by the terms of said policy of insurance it was stipulated and agreed as follows 'Iron-Safe Clause. The assured under this policy hereby covenants and agrees to keep a set of books, showing a record of business transacted, including all purchases and sales both for cash and credit together with the last inventory of said business, and further covenants and agrees to keep such books and inventory securely locked in a fire-proof safe at night, and at all times when the store mentioned in the within policy is not actually opened for business, or in some secure place not exposed to a fire which would destroy the house where said business is carried on, and in case of loss the assured agrees and covenants to produce such books and inventory, and in the event of a failure to produce the same this policy shall be deemed null and void and no suit or action at law shall be maintained thereon for any such loss.' And defendant avers that there has been a breach of said covenants and warranty in the following particulars (1) That the plaintiff did not keep a set of books at provided in said second clause of said warranty and condition. (2) That the plaintiff did not keep said books securely locked in a fire-proof safe at night, and at the other times therein provided, nor did he keep said books in a place not exposed to a fire which would destroy said building where said business was carried on. (3) That the plaintiff failed to produce such books for the inspection of this defendant, after the said loss, alleged in said complaint wherefore and by reason of each said breaches said policy became and was wholly null and void."

To the defendant's special plea numbered 2, the plaintiff filed two replications. In the first replication the plaintiff took issue upon said plea. The second replication was as follows "(2) And the plaintiff for special replication to defendant's second plea, says that immediately after the fire and loss in controversy and before this suit the defendant sent to the scene of the fire and loss one George G. Adams with full power and authority to make examination investigation and adjustment of the loss and damage under the policy in suit in this case; that he, George G. Adams, did then and there make such examination and investigation as to the fire and loss, and, after being fully informed as to how and when, in every particular, the plaintiff had violated the terms and conditions of the policy, if he had violated them at all, recognized and treated the policy as valid and binding and entered into negotiations and dealings with the plaintiff for the settlement and adjustment of the loss and damage, in consequence of which the plaintiff, of necessity, incurred much trouble, expense and lawyer's fees in the premises; and that finally, before this suit, he, George G. Adams, declined and refused to go on with and make such settlement and adjustment on the sole ground that the policy was void because the plaintiff had kept, used, or allowed on the premises or in the stock of goods in controversy hazardous or combustible material prohibited by the policy; but all which the defendant thus by its agents waived and abandoned all the defenses it had to this suit based on its second plea." The defendant demurred to this replication, upon the following grounds: (1) It was not shown in said replication that said George G. Adams had power or authority to waive a forfeiture of said policy by the breach of the warranty and condition contained therein, which said breach had occurred prior to the attempted adjustment by said Adams. (2) It is not averred in said replication that the defendant undertook to adjust or settle or examine into said loss after it had knowledge of the breach of any condition or warranty contained in the policy. This demurrer was overruled, and the defendant duly excepted. Thereupon the defendant filed three rejoinders to the second plea. In the first rejoinder the defendant took issue upon said plea. The second and third rejoinders were as follows: "(2) And the defendant for special rejoinder to said replication numbered 2 says that after the said Adams had entered upon the examination and investigation of said loss, with a view to the adjustment, the said Adams then and there for the first time discovered that there had been a breach or breaches of the warranties and conditions contained in and forming part of said policy of insurance which is the foundation of this action, and the said Adams, then and there refused to proceed with said examination or adjustment unless and until the said replication plaintiff consented and agreed that by proceeding with said examination and investigation the said Adams and the said defendant should not be held to have waived any right or defense which might be available to said defendant by reason of any such breach or breaches, and defendant avers that the plaintiff did then and there agree and consent that the further investigation or examination or adjustment of said loss by said Adams should not be taken or held as a waiver of any right or defense the defendant might have against said policy or liability thereunder and said examination and investigation was continued by said Adams under and in consequence of said consent and agreement and not otherwise, and plaintiff avers that said consent and agreement was lawful and binding and the plaintiff cannot now claim that said examination was a waiver of any defense, without this, that the said Adams declined to go on with said adjustment on the sole ground that the policy was void because the plaintiff had kept, used or allowed on the premises hazardous or combustible articles prohibited by the policy. (3) That the said Adams did not proceed with said examination or adjustment after discovering that there had been a breach of the conditions and warranties contained in said policy, until the plaintiff had consented and agreed that by going on with such examination or adjustment the defendant should not be held to have waived any defense it might have to the claim of the plaintiff under said policy."

The plaintiff demurred to the second and third special rejoinders, which demurrers were overruled. The plaintiff thereupon moved to strike the rejoinders from the file, and this motion was also overruled. Upon the issue joined upon the pleadings, there was evidence introduced on the part of the plaintiff tending to support the averments of the replication numbered 2, and the evidence for the defendant tended to support the defendant's rejoinders 2 and 3. The only defense interposed to the maintenance of the action was the breach of the iron-safe clause. It was admitted on the trial that there had been a breach of the iron-safe clause contained in the policy as to the manner in which the plaintiff kept his books. It was further admitted that due notice was given the defendant of the fire, and proof of loss was made as required by the policy, and that the goods destroyed were of the value of $616.57.

Upon the introduction of all the evidence, the court at the request of the plaintiff, gave to the jury the following...