Home Ins. Co. of New York v. Murphy

• Decision Date: 08 October 1931
• Docket Number: 4 Div. 479.
• Citation: 223 Ala. 566,137 So. 393
• Parties: HOME INS. CO. OF NEW YORK v. MURPHY.
• Court: Alabama Supreme Court

137 So. 393

223 Ala. 566

HOME INS. CO. OF NEW YORK v. MURPHY.

4 Div. 479.

Supreme Court of Alabama

October 8, 1931

Rehearing Denied Nov. 19, 1931.

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Action on a policy of automobile theft insurance by Pat Murphy against the Home Insurance Company of New York. From a judgment for plaintiff, defendant appeals.

Affirmed.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellant.

Frank M. deGraffenried, of Seale, for appellee.

FOSTER J.

This is an action at law by appellee on a policy of insurance against the theft of an automobile. The policy contains the following clause as to notice and proof: "Notice and Proof of Loss. In the event of loss or damage the assured shall give forth notice thereof in writing to this company; and within sixty (60) days after such loss, unless such time is extended in writing by this company shall render a statement to this company signed and sworn to by the assured stating the place time and cause of the loss or damage, the interest of the assured and of all others in the property, the sound value thereof and the amount of loss or damage thereon, all encumbrances thereon, and all other insurance whether valid or not covering said property."

And their effect upon a suit on the policy as follows: "No suit or action on this policy or for the recovery of any claim hereunder be sustainable in any court of law or equity unless the assured shall have fully complied with all the foregoing requirements."

Defendant's plea was in short by consent, with leave "to give in evidence any matter that might be given in evidence in support as if well pleaded in extenso defense *** which said defenses by defendant are as follows: (1) Fraud on part of plaintiff in participating in and procuring the alleged theft. (2) Fraud on the part of plaintiff in refusing to identify and receive the alleged car when tendered to him. (3) Failure to make and give proof of loss as required by policy. (4) General denial."

Appellant insists it was due the general charge, because the evidence showed that there was no proof of loss within the requirements of the policy.

In our recent case of Westchester Fire Ins. Co. v. Green, 134 So. 881, we took occasion to refer to the rule that unless the policy stipulates that the failure in this respect is a condition of forfeiture, or prescribes a penalty which should be so construed, a breach has the effect merely to postpone the time of bringing suit until such proof is made; and that under those circumstances a plea averring the breach is one in abatement. See, also, L. & L. & G. Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880. We also referred to the rule that, when a plea in abatement and one in bar are filed at the same time, plaintiff could either move to strike the plea in abatement or treat it as a nullity. And, as the pleading in that case was in that condition, the plea in abatement would be disregarded if no further notice was given it.

The consent that the pleas may be in short and not written at length will not affect that question nor their nature as in bar and abatement. With such consent, the pleas are merely as though written in extenso. If so written and filed, the plea in abatement may be treated as a nullity. So treated, defendant was not due the general charge based upon it.

Moreover the evidence shows that plaintiff gave defendant notice in writing, within sixty days after the car was stolen, that it had been stolen. There is evidence from which it may be inferred that adjusters for defendant sought out and found the Cryder car, and undertook to satisfy plaintiff that it was his stolen car, and to accept it as such. But there does not appear to have been any objection to the...