Liverpool & London & Globe Ins. Co. v. McCree

• Decision Date: 17 January 1924
• Docket Number: 6 Div. 954.
• Citation: 98 So. 880,210 Ala. 559
• Court: Alabama Supreme Court
• Parties: LIVERPOOL & LONDON & GLOBE INS. CO., LIMITED, v. MCCREE.

98 So. 880

210 Ala. 559

LIVERPOOL & LONDON & GLOBE INS. CO., LIMITED, v. MCCREE.

6 Div. 954.

Supreme Court of Alabama

January 17, 1924

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by J. C. McCree against the Liverpool & London & Globe Insurance Company, Limited. From a judgment for plaintiff defendant appeals. Reversed and remanded.

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

Black Harris & Foster, of Birmingham, for appellee.

THOMAS J.

The complaint, in two counts, is to recover damages for the value of cotton which defendant is alleged to have insured against loss or injury by fire, and which is alleged to have received damage by fire, within the period fixed in the contract of insurance.

The record shows that " demurrers to defendant's plea in abatement are" sustained, though no such demurrer is shown by the record; the demurrers sustained in the record are to the pleas in bar to the suit. (Italics supplied.) Defendant then pleaded in bar and attempted to set up the failure to furnish proof of loss, as contemplated in the alleged contract of insurance. These pleas were numbered 1 to 9, inclusive. Demurrers were sustained to pleas 2, 3, 5, and 8, and overruled as to plea 7. To the amended pleas 10 and 11 demurrers were sustained. The trial was had on counts 1 and 2 and pleas 1, 7, and 9, denying the existence of a binding contract to insure.

If demurrer had been overruled to defendant's "plea in abatement," the absence of that demurrer from the record proper would prevent a review by this court of the ruling thereon. Holley v. Coffee, 123 Ala. 406, 26 So. 239; J. C. Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10; Wade v. State, 170 Ala. 32, 54 So. 171; Moss v. State, 16 Ala. App. 34, 75 So. 179. This is not the rule where demurrer is sustained. As to such ruling, in the absence of demurrer, we have to search that pleading to ascertain if a tenable ground of demurrer exists. Richardson v. Mertins, 175 Ala. 309, 57 So. 720; Leverett v. Garland, 206 Ala. 556, 90 So. 343; Vogler v. Manson, 200 Ala. 351, 76 So. 117.

Decisions that are said to shed light on this question are O'Neal v. Simonton, 109 Ala. 369, 19 So. 8; Hobbie & Teague v. Andrews, 111 Ala. 176, 19 So. 974; Burgess & Co. v. Martin, 111 Ala. 656, 20 So. 506. These cases were subject to the rule requiring of counsel an abstract of the record. In the case of Rosenberg v. Claflin Co., 95 Ala. 249, 10 So. 521, the ruling, it was declared, if error, was without injury. Collins v. A. G. S. R. Co., 104 Ala. 390, 16 So. 140; Jones' Adm'r v. A. M. R. Co., 107 Ala. 400, 18 So. 30; Horan v. Gray & Dudley Hdw. Co., 159 Ala. 159, 48 So. 1029; Vogler v. Manson, 200 Ala. 351, 76 So. 117. In Park v. Lide, 90 Ala. 246, 7 So. 805, the docket memorandum of the chancellor, "demurrer overruled," was not embraced in the formal decree. So of Sivoly v. Scott, 56 Ala. 555, and Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796. These authorities have no application to the question before us.

The case of L. & N. R. R. Co. v. McCool. 167 Ala. 644, 52 So. 656, contains the recital:

"There are no demurrers assailing pleas 3 and 4, set out in the transcript. Hence, assignments predicated on these rulings cannot be reviewed. *** We are, hence, remitted to a consideration of the propriety of the action of the court in sustaining demurrers to plea 2." (Italics supplied.)

In the later case of Merrill v. Sheffield Co., 169 Ala. 242, 254, 53 So. 219, 223, is this statement:

"The demurrer to count 10 is not set out in the record; hence the court cannot be placed in error for sustaining it. The count is evidently defective and repugnant," etc. (Italics supplied.)

Thus did this court search the count for a tenable ground for the sustaining of the demurrer, and the presumption was indulged that the ruling would be rested on such tenable ground if it existed.

The two pleas in abatement recite:

"This cause should abate and be dismissed out of this honorable court, for that, in the policy of insurance sued on in this case it is covenanted and agreed that:

"'If fire occur the insured *** within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of fire. ***"'

It was not necessary that the pleas negative the giving of an extension of time for the required reports. It is shown in the minute entry that-

"The plaintiff's demurrers to defendant's plea in abatement are by the court heard and considered, whereupon it is ordered and adjudged by the court that said demurrers be and they are hereby sustained." (Italics supplied.)

The fair interpretation of the words in which the judgment entry is expressed made plain the fact that there was a specific ruling upon demurrer to each of the pleas in abatement, and the cases of Berger v. Dempster, 204 Ala. 305, 85 So. 392, Sims v. Ala. Water Co., 205 Ala. 378, 381, 87 So. 688, Alabama Power Co. v. Fergusen, 205 Ala. 204, 87 So. 796, and Alabama Chemical Co. v. Niles, 156 Ala. 298, 303, 47 So. 239, are without application. The demurrers are stated in the plural, and " are *** sustained. " (Italics supplied.) The reasonable interpretation thereof is that such were the respective rulings as to each of the pleas in abatement. We cannot say the said rulings are brought within the purview of Best Park & Amusement Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; Henderson v. T. C. I. Co., 190 Ala. 126, 67 So. 414; Sov. Camp. v. Ward, 201 Ala. 446, 78 So. 824; Shelby Iron Co. v. Bierly, 202 Ala. 422, 80 So. 806. The certificate in evidence, and certified to this court for inspection, was a copy of the agent's account of insurance and a part thereof, and was not the completed contract of insurance, the terms and conditions of which are in the certificate referred to as "open policy A" which is "issued," etc. The pleas appear to be in bar to the action.

The overruling of demurrers to counts 1 and 2 is assigned as error. It is insisted that the counts follow the language of the Code, with the omission of the averment "and other perils in the policy of insurance mentioned." The defendant had the right by demurrer to insist that it be informed in said pleadings whether the contract of insurance was verbal or written. The words "policy of insurance" were not used in these counts. These words have a well-defined meaning (B. R. L. & P. Co. v. Littleton, 201 Ala. 141, 77 So. 565; Prudential Casualty Co. v. Kerr, 202 Ala. 259, 80 So. 97; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 150, 82 So. 175), and if they had been in the counts would have imputed that the contract of insurance was in writing and founded on a valuable consideration. If the insurance was verbal, or if the suit was on a contract to insure, the consideration was necessary to be averred, if insisted upon by demurrer. Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175; Prudential Casualty Co. v. Kerr, supra. The seventh ground of demurrer challenged the sufficiency of the several counts in failing to allege that the suit was founded upon a "policy of insurance," or, if not, upon an agreement to insure or on parol insurance that was rested upon a consideration passing from plaintiff to defendant under said contract. B. R. L. & P. Co. v. Lipscomb, 198 Ala. 653, 73 So. 962. In the cases of Liverpool & London & Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765, and Royal Exch. Assur. of London v. Almon, 202 Ala. 374, 80 So. 456, and 206 Ala. 45, 89 So. 76, the complaints were not challenged by like grounds of demurrer.

Assignments of error challenge the sustaining of demurrers to pleas in bar, numbered 2, 5, and 10. In Central Ins. Co. v. Oates, 86 Ala. 558, 6 So. 83, 11 Am. St. Rep. 67, the provision for notice sought to be set up by the pleas was considered, and it was held to be an essential prerequisite to the right of recovery by the assured, unless such compliance is waived by the insurer, to give "immediate notice" of the loss by fire. And pleas 3, 6, and 11 set out the provisions of the insurance relied on and denied compliance therewith by plaintiff. Fire Insurance Companies v. Felrath, 77 Ala. 194, 54 Am. Rep. 58; Feibelman v. Manchester Fire Assur. Co., 108 Ala. 180, 202, 19 So. 540. There is no difficulty as to the stipulations of the policy to be subsequently written up and delivered; "it will be presumed (in the absence of stipulations to the contrary) that the parties contemplated such form of policy containing such conditions and limitations as are usual in such cases" for...