Home Protection of North Alabama v. Caldwell

• Decision Date: 22 January 1889
• Citation: 5 So. 338,85 Ala. 607
• Parties: HOME PROTECTION OF NORTH ALABAMA v. CALDWELL ET AL.
• Court: Alabama Supreme Court

5 So. 338

85 Ala. 607

HOME PROTECTION OF NORTH ALABAMA v. CALDWELL ET AL.

Supreme Court of Alabama

January 22, 1889

Appeal from circuit court, Jackson county; JOHN B. TALLY, Judge.

This action was brought by Caldwell Bros., suing as partners against the appellant, a private corporation engaged in the business of fire insurance, on a policy of insurance on a stock of goods, issued by the defendant in favor of Snodgrass & Caldwell. The complaint alleged the issue and terms of the policy; the sale of the insured goods by Snodgrass & Caldwell "to E. H. Caldwell, for the firm of Caldwell Bros., by which said policy of insurance became the property of the plaintiffs;" the assignment of the policy to them, by and with the consent of the defendant; and the destruction of the goods by fire. The defendant filed two pleas; the first averring that the statements of the complaint were not true and the second that the plaintiffs had failed and neglected to furnish proof of loss, as required by the terms of the policy. Judgment was rendered as follows: "Came the plaintiffs by attorney, and no one appeared for the defendant; case tried; and thereupon came a jury," etc "who, being impaneled, sworn, and charged well and truly to try the issue, upon their oaths find for the plaintiffs and assess their damages at $5,716.66." From this judgment the defendant appeals, and here makes the following assignments of error: "(1) The court erred in proceeding to trial, not having the defendant or counsel called, as the record shows that neither was present. (2) In proceeding to a trial of the cause when the plaintiff had not replied to either of the pleas in bar filed by the defendant. (3) In proceeding to trial and judgment when plaintiffs had not replied or otherwise taken issue on defendant's first plea. (4) In proceeding to trial and judgment when plaintiffs had not replied or otherwise taken issue on defendant's second plea. (5) In swearing and charging the jury to try the issue, when there was no issue joined for the jury to try. (6) In rendering judgment for the plaintiffs, when the complaint does not contain a substantial cause of action. (7) In rendering judgment for the plaintiffs, when the complaint shows that they had not the legal title to the goods insured, but the legal title thereto was in E. H. Caldwell."

R. C. Brickell, for appellant.

Brown & Kirk, for appellees.

SOMERVILLE J.

The action is one on a policy of fire insurance, brought by the appellees against the appellant corporation, which is a fire insurance company. Certain pleas were filed, but the defendant failed to appear to sustain them on the trial. The court, without making up a formal issue, proceeded with the trial of the cause, and verdict and judgment were rendered for the plaintiff. The statute provides that "no judgment can be arrested, annulled, or set aside for any matter not previously objected to, if the complaint contain a substantial cause of action." Code 1886, § 2835. The most cursory examination of the complaint filed in the present case not only shows the disclosure in it of a substantial cause of action for the wrong complained of, but the complaint itself seems to contain every essential averment required by the form prescribed by the Code for an action on the policy of fire insurance. Code 1886, p. 792 form 13; Insurance Co. v. Bledsoe, 52 Ala. 538. It is manifest that an action on such a policy, which is a contract for indemnity against loss by fire, is not "founded on an instrument of writing ascertaining the plaintiff's demand" within the meaning of the statute, (Code 1886, § 2740,) and that it would have been error to render judgment final by default, or by nil dicit, on it without the intervention of a jury to ascertain the amount of plaintiff's damages. Insurance Co. v. Fowler, 76 Ala. 372. It was clearly proper, therefore, that the court should have submitted to the jury, in some form, the determination of the value of the plaintiffs' property...