Hartford Fire Ins. Co. v. Kirkpatrick

• Decision Date: 25 June 1896
• Parties: HARTFORD FIRE INS. CO. v. KIRKPATRICK ET AL.
• Court: Alabama Supreme Court

20 So. 651

111 Ala. 456

HARTFORD FIRE INS. CO. v. KIRKPATRICK ET AL.

Supreme Court of Alabama

June 25, 1896

Appeal from city court of Montgomery; Thomas M. Arrington, Judge.

Action by Kirkpatrick, Dunn & Co. against the Hartford Fired Insurance Company to recover the amount of a loss by fire covered by a policy of insurance issued by the defendant. From a judgment for plaintiffs, defendant appeals. Affirmed.

The defendant pleaded, by its third and fifth special pleas payment and satisfaction of the claim, and that the cause of action by the plaintiffs had been settled for $25, paid by the defendant, and accepted by the plaintiffs in satisfaction of their demand, and that the policy was assigned and relinquished by the defendant to the plaintiffs before the commencement to the suit. To these pleas the plaintiffs filed the following replication: "Comes the plaintiff, and saith that by reason of the third plea and plea filed October 29, 1891 (No. 5), or anything in said plea alleged, they ought not to be barred from having and maintaining their aforesaid action against said defendant, because they say That on, to wit, April 30, 1891, said defendant was indebted to plaintiff in the sum of $500. That said plaintiff's loss by fire had been investigated and adjusted by defendant and that said sum had been agreed upon as the loss sustained by plaintiffs, covered by the policy issued by defendant. That on, to wit, April 30, 1891, one J. B. McDonald, an agent of defendant, wired J. F. Kirkpatrick, at Garland, Ala., to meet him at Montgomery, and to bring with him the policy of insurance. That in compliance with said request said Kirkpatrick came to Montgomery, Alabama. That said McDonald requested Kirkpatrick to accompany him to his room. That McDonald locked to the door, and requested plaintiff to produce the policy of insurance; said policy being the foundation of this suit. That said McDonald then stated, in substance, that plaintiffs had burned their store, and the goods therein contained; that he could prove it; that Dunn one of the plaintiffs, was seen to surreptitiously remove goods from said store, just previous to the fire; that said Dunn had burned said store for the purpose of securing the insurance; that he would have Dunn arrested at once, and send him to the penitentiary; that he would have said Kirkpatrick arrested at once, without delay, incarcerate plaintiffs, and have a special term of the circuit court of Butler county convene for the purpose of trying plaintiffs; that he represented large corporations, and could do anything he desired. Plaintiff, said Kirkpatrick, implored said McDonald to allow him an opportunity to see his partner, Dunn, and inquire into the allegations and charges made by said McDonald. That said McDonald positively and peremptorily refused to grant time, but demanded the policy of insurance,-said that his company required an immediate settlement and delivery of the policy; that it was dangerous to have said policy of insurance in his possession; that he (defendant) must comply with his demand; it was a matter of dollars and cents on the one side and freedom and liberty on the other, but if plaintiff would deliver the policy, he would give him $25. This was to reimburse him for expenses in coming to see him. That he then wrote something on the back of said policy of insurance, and requested plaintiff to sign same, and, if he did not, he would execute threats as aforesaid. That while bewildered, overpowered, and frightened by said threats and charges as aforesaid, he signed same, and received the $25, although said defendant was really indebted to the plaintiff in the sum of $500. That the plaintiffs have heretofore, previous to the commencement of this suit, tendered to the defendant said sum of $25, paid as aforesaid by said McDonald, and requested the return of said policy. That said request and tender was refused. And plaintiff avers: That said charges and allegations as aforesaid made by said McDonald were false, and made for the purpose and design to fraudulently obtain said policy of insurance from plaintiff. That by reason of said false and fraudulent representations and threats as aforesaid, said Kirkpatrick was misled, frightened, deceived, and inveigled into the relinquishing said policy of insurance as aforesaid. That plaintiff, said Kirkpatrick, was absent from Garland at the time said storehouse was burned; knew nothing of the particulars, other than hearsay, and had no personal knowledge of the facts. That, apprehending said McDonald would execute his threats as aforesaid, or inflict upon plaintiff great bodily harm, he executed said release as aforesaid, and plaintiff avers that he is and was a stranger in the city of Montgomery, and ignorant and unsophisticated in the arts and devices of the world. That said McDonald is a large man, of seeming great physical power. That said plaintiff is of fragile physical formation, and was unprepared to cope with said McDonald, and that said conversation and action on the part of said McDonald occurred during the midnight hours of April 30, 1891, in the room of said McDonald, lighted by the dim flicker of a lowered gas jet. Wherefore plaintiffs pray judgment, and their debt aforesaid, together with other damages they sustained by reason of the detention thereof to be adjudged to them." To this replication the defendant demurred upon several grounds, which may be summarized as follows: First, that the replication did not aver in what way the facts stated influenced or induced the execution of the indorsement upon the policy; and, second, it did not show that the indorsement thereon was an unlawful indorsement. To so much of the replication as set up that the agent of the defendant had said to Kirkpatrick that plaintiffs burned their store, and that he could prove it, the defendant demurred upon the following grounds: (1) That the facts did not show either fraud or corruption; (2) that it did not appear that the plaintiffs were mislead or deceived thereby; (3) that it did not appear that Kirkpatrick did not know at the time that the statements were untrue; (4) that it was not shown wherein the statements were untrue. There was also a special demurrer to that part of the replication setting up that the assignment was obtained by duress, and the grounds were substantially as follows: (1) It was not shown that plaintiffs, or either of them, were threatened with illegal arrest or prosecution; (2) that it was shown that the threats were to prosecute the plaintiffs by law, and in the courts of the country. The same grounds of demurrer assigned to each separate portion of said replication were also separately assigned to the replication as a whole. The court overruled the demurrers, and thereupon the defendant took issue on the replication.

Upon the question of duress in obtaining the release, Kirkpatrick as a witness in behalf of the plaintiffs, testified to facts tending to prove the averments of the replication, and also testified that after the receipt of the $25 and the execution of the release, and before the commencement of the present suit, he offered to pay the $25 back to the defendant. McDonald was the only witness examined in behalf of the defendant upon the question of the execution of the release, and his testimony was to the effect that he did not threaten Kirkpatrick with imprisonment, or tell him that he had heard that there was something crooked about the fire, and that his opinion was that Dunn, Kirkpatrick's partner, had set fire to the store, and that under these circumstances his policy was worth nothing, and that his company proposed to investigate the matter, and, if found true, would prosecute the guilty party; that after an hour and a half conversation with Kirkpatrick he proposed to settle the matter, and as a result of his conversation he paid Kirkpatrick $50, and thereupon Kirkpatrick executed the release and transfer which was indorsed on the back of the policy. Upon the introduction of all the evidence the court instructed the jury: "That if they believed Kirkpatrick executed the release from fear, that if he was deprived of the exercise of his free will, that it was from fear of an immediate prosecution for arson, produced by the conduct and threats of McDonald, and they were such as to overcome the will of a person of ordinary courage, and if they further believe that the consideration was grossly inadequate, then plaintiffs would not be bound by the release." To this portion of the court's general charge the defendant duly excepted, and also separately excepted to the court's refusal to give each of the following charges, requested by it: (1...