Hanover Fire Ins. Co. of N. Y. v. Salter

• Decision Date: 03 October 1950
• Docket Number: 3 Div. 907
• Citation: 35 Ala.App. 487,49 So.2d 188
• Parties: HANOVER FIRE INS. CO. OF NEW YORK v. SALTER.
• Court: Alabama Court of Appeals

Page 188

49 So.2d 188

35 Ala.App. 487

HANOVER FIRE INS. CO. OF NEW YORK v. SALTER.

3 Div. 907.

Court of Appeals of Alabama.

Oct. 3, 1950.

Rehearing Denied Oct. 31, 1950.

Edw. Reid, of Andalusia, for appellant.

Edwin C. Page, Jr., of Evergreen, for appellee.

HARWOOD, Judge.

This is an appeal by the defendant below from a verdict and judgment rendered in favor of the plaintiff below, appellee here. For convenience the parties will hereinafter in this opinion be referred to as plaintiff and defendant.

The complaint contained two counts. Count I claimed the value of a truck insured against loss by fire under a policy of insurance issued by the defendant, which truck was destroyed by fire.

Count II is practically identical with count I, except it claims for damages to the truck by fire.

The defendant filed a plea in abatement on the ground that the plaintiff filed Proof of loss with the defendant, which was dated 26 July 1947, and received by defendant on 27 July 1947, and that thereafter suit in this cause was filed by the plaintiff on 23 August 1947, which was less than thirty days from the filing of such Proof of Loss, and in violation of the provisions of the insurance contract that actions should not be against the defendant company under the policy until thirty days after Proof of Loss was filed and the amount of loss determined as provided in the policy.

Plaintiff's demurrer to the plea in abatement being overruled, the plaintiff filed two replications.

Replication No. 1 averred that the defendant had denied liability under the policy by registered mail, and thereby had waived the policy requirements that proof of loss be filed.

Replication No. 2 averred that the defendant denied liability under the policy by registered mail and that suit was filed more than thirty days after such denial, and that the defendant by such denial of liability waived the policy requirements as to Proof of Loss and limitations on time for filing suit.

The defendant filed a rejoinder to plaintiff's replications 1 and 2, in which it admitted that on 27 June 1947, it had denied liability by registered letter, but the defendant averred that on 26 July 1947 the plaintiff had executed a Proof of Loss, which was received by mail by the defendant on 27 July 1947, which Proof of Loss was filed by election by the plaintiff, and having so elected the plaintiff was thereby bound by the terms of the policy which provided that suit should not be for thirty days after Proof of Loss is filed.

Plaintiff demurred to defendant's rejoinder on the grounds that said rejoinder shows on its face that denial of liability by the defendant was an election not to pay said policy of insurance under all circumstances, and therefore no Proof of Loss was required to be filed by the plaintiff; that said rejoinder shows on its face that filing of Proof of Loss was waived by the defendant; that the rejoinder shows that defendant is now estopped from asserting the policy requirement of Proof of Loss; and that said rejoinder shows that suit was filed more than thirty days after denial of liability by the defendant.

The court sustained plaintiff's demurrer to the rejoinder.

This action by the court is the basis of defendant's (appellant's) assignment of error No. 1. In his brief appellant's counsel argues that the action of the plaintiff in filing the Proof of Loss amounted to a waiver by the plaintiff of any waiver of the defendant created by the denial of liability.

In Bankers Fire & Marine Ins. Co. v. Draper, 242 Ala. 601, 7 So.2d 299, 301, the Supreme Court enunciated the following doctrine:

'The provision in a fire insurance policy in effect delaying suit on it until a certain time after furnishing proofs is waived by a denial of liability on the part of the insurer. Rhode Island Ins. Co. v. Holley, 226 Ala. 320, 146 So. 817; Box v. Metropolitan Life Ins. Co., 232 Ala. 321, 168 So. 217; 29 Am.Jur. 1038 section 1391.

* * *

* * *

'It is also insisted that plaintiff did not act upon any such waiver but made the proofs within the time required, and brought suit before the expiration of sixty days after doing so. Reliance is had on the principle that a waiver may be waived, citing Tedder v. Home Ins. Co., 212 Ala. 624, 628, 103 So. 674. That case cites 26 Corpus Juris 393, § 505, which declares that a waiver of proof is not defeated by the subsequent act of insured in attempting to furnish them. Fedas v. Insurance Co. of Pennsylvania, 300 Pa. 555, 151 A. 285. But there may be a waiver of a waiver by subsequent mutual agreement. The election to waive the proofs and the waiting period of sixty days, once made, is irrevocable. American Ins. Co. v. Millican, 228 Ala. 357, 153 So. 454(5).'

The above doctrine supports the action of the trial court in the instance now being considered.

The defendant filed six pleas. Plea 1 is the general issue.

Pleas 2 and 3 set forth the policy provision that the policy does not apply while the automobile is subject to encumbrance not declared in the policy, and aver that the insured truck was encumbered by a mortgage, or mortgages, not declared in the policy.

Pleas 4, 5, and 6 aver in various ways a breach by the plaintiff of the following provision in the policy:

'This policy shall be void if the insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof or in case of any fraud, attempted fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.'

The plaintiff filed demurrers to these pleas, setting up, among other grounds that the pleas failed to allege that the risk of loss was increased by the execution of any mortgage or mortgages, or that said mortgage was given with intent to defraud.

Appellant's assignment of error No. 2 is addressed to the court's action in sustaining the demurrer to pleas 2 through 6.

Because of the defects in the above pleas, the court correctly sustained the demurrers filed to them. Great American Insurance Co. v. Dover, 219 Ala. 530, 122 So. 658; National Union Fire Insurance Co. v. Schwab, 241 Ala. 657, 4 So.2d 128.

The defendant then filed six additional pleas (pleas 7 through 12), which pleas assert the same defensive matter as asserted in pleas 2 through 6, but further aver that the misrepresentation by the plaintiff as to the existence of any other encumbrance on the truck was made with actual intent to deceive, or increased the risk of loss.

The plaintiff then filed a replication to these pleas (7 through 12), in which, omitting the formal parts, he asserted that:

'At the time the insurance policy in question, the subject of this litigation was purchased by the Plaintiff, that one A. P. Weed, who was then President of the Bank of Brewton, Brewton, Alabama, a Corporation, was the Agent of the Defendant; that said Agent at such time had full authority to write such policy of fire insurance, that the Plaintiff made no written application for said policy of insurance, and that said Agent of the Defendant, and no other Agent of the Defendant, asked any information of the Plaintiff relative to any provision or clause in said policy of fire insurance to be issued, that said policy would not apply under any of the coverages while the automobile is subject to any bailment, lease, conditional sale or other incumbrance, and that said Defendant or its Agent, did not ask the Plaintiff relative to any such mortgages or other incumbrances, except mortgage then taken from the Plaintiff to the Bank of Brewton, and that the Plaintiff made no statement to the said Agent of the Defendant or to the Defendant relative to said mortgages or incumbrances, except as to the mortgage then taken by the Bank of Brewton; that the Plaintiff had no knowledge that said mortgages or information relative thereto was material to the risk or that the risk would have been rejected by the Defendant if the...