Hartford Fire Ins. Co. v. Clark, 8 Div. 597

Citation258 Ala. 141,61 So.2d 19
Decision Date03 April 1952
Docket Number8 Div. 597
PartiesHARTFORD FIRE INS. CO. v. CLARK.
CourtSupreme Court of Alabama

F. W. Davies and Davies & Williams, all of Birmingham, for appellant.

Marion F. Lusk, Guntersville, for appellee. Counts of the complaint are as follows:

Count 4

'Plaintiff claims of defendant twenty-five hundred dollars ($2500.00) with interest from August 27, 1947, for this--that on or about August 27, 1947, in consideration of this plaintiff having forborne for a reasonable time at defendant's request to sue defendant for loss by fire sustained by him on or about November 8, 1946, against which loss defendant had insured him by its Policy No. 3422, defendant promised to pay this plaintiff $2500.00, which it has failed and refused to do, and hence this suit.'

Count 5

'Plaintiff claims of defendant $2500.00 with interest from August 27, 1947 for this--that on or about December 21, 1945 defendant issued to one John A. Rains doing business as Rains Manufacturing Company at Albertville, Alabama, its policy No. 3422 insuring for one year against loss by fire in the amount of $500, metal lathe, drill presses, motors, electric welders, acetylene welder, electric spot welder, etc., while located in the one story, frame, composition roof building located at 503 McCord Avenue in Albertville, Alabama and also in the amount of $750 on sheet metal machinery $750 on stock of materials and $500 on office furniture, all of which was insured while located in the one story, frame, concrete, composition roof building located at 504 N/S McCord Avenue in Albertville, Alabama; that on or about August 24, 1946 while said policy was in force, plaintiff acquired the insured property from said John A. Rains, who then and there acting for this plaintiff, informed defendant's general agent at Albertville, one Chester F. Rains, of the sale of the insured property and of its removal to 500 McCord Avenue in Albertville, and instructed said agent to transfer said insurance to this plaintiff, that defendant through said agent then and there acting within the line and scope of his authority had full notice and knowledge of the change in location then being made, and defendant did not thereafter give plaintiff any notice of any suspension, change of coverage or cancellation of said policy, and thereafter the removal to 500 McCord Avenue was completed; that on or about November 8, 1946, while plaintiff was relying on the continued force and effect of said policy, said property was destroyed by fire, of which defendant has had notice.'

Count 6

'Plaintiff claims of defendant $2500.00 with interest from August 27, 1947 for this--that on or about December 21, 1945 defendant issued to one John A. Rains doing business as Rains Manufacturing Company at Albertville, Alabama, its policy No. 3422 insuring for one year against loss by fire in the amount of $500.00, metal lathe, drill presses, motors, electric welders, acetylene welder, electric spot welder, etc., while located in the one story, frame, composition roof building located at 503 McCord Avenue in Albertville, Alabama, and also in the amount of $750 on sheet metal machinery, $750 on stock of materials and $500 of office furniture, all of which was insured while located in the one story, frame, concrete, composition roof building located at 504 N/S McCord Avenue in Albertville, Alabama; that on or about August 24, 1946 while said policy was in force, plaintiff acquired the insured property from John A. Rains, who then and there, acting for this plaintiff, informed defendant's general agent at Albertville, one Chester F. Rains, of the sale of the insured property and of its removal to 500 McCord Avenue in Albertville, and instructed said agent to transfer said insurance to this plaintiff; that defendant through said agent then and there acting within the line and scope of his authority, consented and agreed to such removal and that the property would continue to be subject to and covered by said policy, and thereafter notified plaintiff at 500 McCord Avenue that the policy had been endorsed; that in reliance on said consent and agreement plaintiff completed the removal of said property and desisted from procuring other insurance thereon; that on or about November 8, 1946 said property was destroyed by fire, of which defendant has had notice.'

The following are pleas filed by defendant:

'8. Defendant further avers that in the said policy of insurance it is expressly provided as follows:

"This entire policy shall be void if, whether before or after a loss, the insured has wilfully concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof, or the interest of the insured therein, or in case of any fraud or false swearing by the insured relating thereto.'

'Defendant further avers that after the fire in this cause the plaintiff did file with this defendant a sworn statement in proof of loss, which said statement was sworn to by plaintiff on, towit, May 24, 1947. In said proof of loss, it is stated in substance and effect that plaintiff was the owner of a stock of materials which had a value of to-wit, $1,019.45, and plaintiff also claims in said proof the sum of $750.00, the total amount of insurance on said alleged stock of materials. Defendant further avers that said statement in said proof as to the value of said material was false and fraudulent and was made with actual intent to deceive this defendant. Wherefore, defendant avers that plaintiff ought not to recover.

'9. For this plea, the defendant adopts all of the averments of Plea 8, down to and including the quoted provisions of the said policy and in addition thereto, defendant avers that after the fire in this cause the plaintiff did file with this defendant a written sworn statement in proof of loss, which said statement was sworn to by plaintiff on, to-wit, May 24, 1947. Defendant further avers that in said proof it is stated in substance and effect by plaintiff that he was the sole and unconditional owner of the items claimed in said proof when the policy was acquired and at the time of the loss, and that no other person, or persons, had any interest therein, or encumbrance thereon. Defendant further avers that said statements in said proof of loss were false and fraudulent and made with actual intent to deceive this defendant. Wherefore, defendant avers that plaintiff ought not to recover.'

Plaintiff's surrejoinders are as follows:

'4. That when said non-waiver agreement was presented to plaintiff by defendant's agent Irvin T. Cobb, plaintiff asked said Cobb what the paper was, and said Cobb assured plaintiff it was nothing but a written permission to investigate plaintiff's loss, and further told plaintiff it would not be possible to investigate plaintiff's loss unless plaintiff did sign the paper, and still further he said to plaintiff--'You needn't worry a minute about your insurance, you will get your $2500.' That said Cobb knew at the time of making said statements that said paper contained more than a mere permission to investigate plaintiff's loss, and knew that it would be possible to investigate plaintiff's loss without such a paper, and said statements and said promise were made with the intent to deceive and defraud plaintiff; that plaintiff believing said statements and promise and relying on them did sign said paper without reading it.

'10. That said non-waiver agreement was made on the condition that defendant would without delay investigate plaintiff's claim and ascertain the appropriate values of and loss or damage to the property involved; that said condition was not met by defendant in this, that it did not investigate and ascertain without delay, but on the contrary prolonged and postponed such investigation and ascertainment for an unreasonable time, and thereafter with knowledge of such other insurance, adjusted the loss at Twenty Five Hundred Dollars ($2500.00) and promised to pay plaintiff that amount.'

The refused charge made the basis of assignment 81 is as follows:

'7. If you believe the evidence plaintiff is not entitled to recover under surrejoinder #11.'

Charge 18 refused to defendant is as follows:

'18. If you believe the evidence in this case the policy sued upon was violated and forfeited by the additional insurance issued by The Standard Fire Insurance Co., The Firemen's Insurance Co. and the St. Paul Fire & Marine Insurance Co.'

FOSTER, Justice.

This appeal is from a judgment for plaintiff in a suit on a fire insurance policy. A former suit came to us on this claim from a judgment of nonsuit taken by plaintiff because of adverse rulings on demurrer to the complaint. Those rulings were affirmed on that appeal. Clark v. Hartford Fire Ins. Co., 252 Ala. 84, 39 So.2d 675.

Plaintiff then instituted another suit in which he recovered the judgment involved on this appeal. The case went to the jury on counts 4, 5 and 6; special pleas 4, 7, 19, 20, 22 and 24; special replications 2 and 3 to pleas 7, 19 and 20; special rejoinders 2 and 3 to replications 2 and 3; special surrejoinders 4, 10 and 11 to rejoinders 2 and 3. Plea 22 alleged an absence of consideration. Pleas 4 and 24 charged plaintiff with causing the fire. There was no evidence to support them, so no attention was given them.

The first assignment of error relates to the judgment overruling defendant's demurrer to count 4. Appellant first contends as to count 4 that it does not allege there was an agreement by plaintiff to forbear to sue defendant for the loss against which defendant had insured him by a specified policy, as the consideration for defendant's promise to pay plaintiff $2,500, for which he sues. But it does allege there had been an actual forbearance to sue defendant for a reasonable time at the defendant's request. So that, the consideration alleged is not to forbear to sue, but that the forbearance had occurred...

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