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

• Decision Date: 17 May 1895
• Citation: 17 So. 672,110 Ala. 201
• Court: Alabama Supreme Court
• Parties: LIVERPOOL & LONDON & GLOBE INS. CO. v. TILLIS.

17 So. 672

110 Ala. 201

LIVERPOOL & LONDON & GLOBE INS. CO. v. TILLIS.

Supreme Court of Alabama

May 17, 1895

Appeal from circuit court, Geneva county; John R. Tyson, Judge.

Action by R. Tillis against the Liverpool & London & Globe Insurance Company on a fire insurance policy. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

The complaint declares upon a policy of insurance issued by defendant to Chancey & Newsome on September 28, 1892, on a stock of goods alleged to have been burned October 6th thereafter. The complaint avers a transfer of the policy to plaintiff. To this complaint various pleas were filed. They set up substantially the following defenses: (1) The general issue. (2) That the policy required a proof of loss to be made by the assured before any action could be maintained thereon; and none had been made. (3) The policy required assured to furnish a certificate of the nearest justice or notary public, certifying to certain specified facts; and that no such certificate had been furnished. (4) That the policy required the assured, as soon after giving notice of loss as possible, to render the company a particular account of the loss, signed and sworn to by them; and no such account had been furnished. (5) The fifth plea sets up substantially the same defense as the third. (6) That the assured covenanted in the policy to keep a set of books showing sales and purchases and other transactions, and, further, to keep them at night, and when the store should not be actually open, in an iron safe, or in some safe place, not exposed to a fire that would destroy the store. That the assured further agreed to produce such books, and, in the event of a failure to produce them, the policy should be void. It was further averred that this clause of the policy was a condition precedent to a recovery, and that it had not been complied with. (7) That the assured had moved the goods from the storehouse before the fire, and had then set fire to and burned the storehouse. To these pleas the plaintiff filed a number of replications. The replications to the second third, fourth, and fifth pleas were substantially as follows (1) That before the expiration of the time for making proof of loss and for furnishing certificate of magistrate defendant positively declined and refused to pay the damages claimed, and thereby waived compliance with those conditions. (2) That before the time for making proof and furnishing the certificate, the defendant, through its agent, Morris, as well as through its adjuster, denied all liability on the policy; but Morris at the same time gave plaintiff a draft drawn by him as agent of the defendant on the defendant for $550, in full payment and satisfaction of any liability it had incurred; thereby asserting that it was only liable for that amount. (3) That although the policy was for $1,100, the property destroyed was of a value greatly in excess of that sum. The defendant, within the time allowed by the policy for making proofs of loss and for furnishing the certificate gave plaintiff a draft for $550, drawn by Morris, its agent on itself, in settlement of damages sustained on the policy. That at the time of giving the draft, Morris, defendant's agent, stated that, if defendant refused to pay the draft, it would pay nothing on the policy. (4) That within the 60 days allowed for making proofs of loss and for furnishing the certificate, the adjuster of the defendant visited the premises, and inspected the same, made inquiry of the loss sustained, and made no complaint of the failure to furnish proofs of loss and to do other acts mentioned in the pleas. The replications to the sixth plea were substantially as follows: (1) That assured kept a set of books as required, but they were destroyed by fire; hence could not be produced. (2) That defendant waived any right it may have had to the production of the books by its refusal, through its agent and through its adjuster, to pay the full amount expressed in the policy, and by its denial of any liability thereunder. (3) That at the time of issuing the policy defendant knew that the assured did not and had not kept an iron safe, and thereby waived the keeping of the same. To the seventh plea the record does not show that any replications were filed, or that the plaintiff even took issue thereon. The record shows a demurrer to one replication, and a motion to strike one plea, but it does not show any action by the court thereon. The judgment entry recites that issue was joined on the plaintiff's replication to defendant's pleas. On the trial of the case the policy itself was introduced in evidence. It contained the clause requiring the assured to keep and produce books, as averred in the pleas. The tenth clause required the proof of loss and a magistrate's certificate to be furnished, and provided that the loss should not be payable until they should be furnished.

The only testimony, so far as material to any issue involved on this appeal, was substantially as follows: Chancey testified that he notified Morris, agent of defendant, of the loss, and Morris stated that he would notify the company, but said it would want to see the books assured kept; and he (witness) replied that they were all burned, except a small book, showing cash account after September 28, 1892. Morris then said he expected they would have some trouble, and advised him to employ a lawyer,-his (Morris') partner. A few days after, he called on Morris, who stated that he had written the company, but had heard nothing. He then traded the policy to Tillis, the plaintiff. About November 1st, Prioleau, defendant's adjuster, visited the scene of the fire, made inquiry touching the circumstances of the burning and the amount of the loss, and made no objection because of the failure to furnish proofs of loss, or because of the failure to comply with any other condition. The plaintiff testified that about the month of November, 1892, he went to Morris' office to see Prioleau, and asked him what he was going to do about the insurance money; that Morris and Foster were present; that Prioleau told him the company was not liable, and he had no proposition to make to him; that subsequently Morris gave him a draft on the company for $550, and stated that, if it was not paid, the company would not pay anything. This draft was not paid. Prioleau was introduced as a witness for the defendant. He denied making or attempting to make any adjustment of the loss. He also denied telling Tillis the company was not liable. He said that he told him he had no authority to receive propositions or settle claims. The record shows that on cross-examination this witness was permitted to testify that he had written a letter to the company, in which he stated that he did not think it was liable under the iron-safe clause; and that, as no proofs had been made, he could not state the amount of loss. The defendant objected to the question and answer regarding what this witness wrote to the company, on the ground that it was "illegal." The court overruled the objection, and defendant excepted. This witness further testified that his instructions were to investigate the circumstances of the loss, ascertain the amount, and to report whether, in his opinion, the company was liable; that he had neither the original nor a copy of his report. Foster corroborated Prioleau as to what occurred with Tillis in Morris' office, as did also Morris. Morris testified that he told Chancey that the company would wish to see their books, and was told that they were all burned in the building; but he denied telling that the company was not liable. He testified that Chancey asked him to help him get his money, and he told him he could not. He then asked him about a lawyer, and in reply to this inquiry he suggested that he employ Foster. He testified that he was only a soliciting agent, and had no authority except to issue policies, transfer risks, and to collect premiums. On cross-examination he testified that at the time he drew the draft he told Tillis that he had no authority to draw it; that Tillis held a claim against assured, and other claims were held by Foster; that the aggregate amount of the claims was $550; that the draft was drawn to pay all of them; that subsequently Tillis' attorney refused to allow the money to be paid to Foster, and the latter wired and wrote the company not to pay the draft. He denied telling Tillis that, if the draft was not paid, nothing would be paid. Defendant introduced the application for insurance made by the assured, in which the applicants agreed to keep their inventories and books in a fireproof safe, or take them out of the building every night. At the conclusion of this testimony, defendant moved to exclude all testimony of denial of liability by Prioleau and Morris, on the ground that they were not such agents as could bind defendant by such denial. This motion was overruled, and defendant excepted. There was a good deal of evidence tending to show that the assured had moved the goods from the store before the fire, and a good deal in rebuttal, but no question is presented on this appeal arising upon that evidence, and we deem it unnecessary to set it out.

Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the following written charges to the jury: (1) "If the adjuster of defendant visited the scene of the fire, investigated the circumstances attending it, and this was in November following the fire in October, and made no objection to the failure of plaintiff or plaintiff's...