Manchester Fire Assur. Co. v. Feibelman

• Decision Date: 17 May 1898
• Citation: 23 So. 759,118 Ala. 308
• Parties: MANCHESTER FIRE ASSUR. CO. v. FEIBELMAN.
• Court: Alabama Supreme Court

23 So. 759

118 Ala. 308

MANCHESTER FIRE ASSUR. CO. v. FEIBELMAN.

Supreme Court of Alabama

May 17, 1898

Appeal from circuit court, Jefferson county; James J. Banks, Judge.

Action by E. Feibelman against the Manchester Fire Assurance Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

The complaint as originally filed on May 6, 1892, contained one count, which was as follows: "(1) The plaintiff claims of the defendant the sum of fourteen hundred, three and no/100 dollars, being the value of the loss by fire on fixtures, six hundred dollars, two pool tables, one hundred dollars each, and six hundred and three dollars on stock of wine, brandy, whisky, beer, tobacco and cigars and other merchandise, as per adjustment with one Witherbee, the defendant's adjuster, which the defendant, on the 3d day of September, 1891, insured against loss or injury by fire and other perils on the policy of insurance for the term of one year, which said property was destroyed by fire on January 10, 1892, of which the defendant has had notice."

A second count was afterwards filed, but was subsequently withdrawn. On November 20, 1896, a third count to the complaint was, by leave of the court, filed, which was as follows: "(3) The plaintiff claims of the defendant the further sum of fourteen hundred and three and no/100 dollars being the value of fixtures, sideboard, glasses, beer cooler screen, cash register, show case and other fixtures-on his pool tables two hundred dollars-on his stock of wine, brandy whisky, beer, tobacco and cigars and such other merchandise not more hazardous as is usual in this trade, seven hundred dollars, which the defendant, on the 3d day of September 1891, insured against loss or injury or other perils in the policy of insurance mentioned, which property was wholly destroyed by fire on the 10th day of January, 1892, of which the defendant has had notice. And plaintiff avers that said policy of insurance was issued to H. A. Feibelman; that by said H. A. Feibelman transferred and assigned with the consent of the said defendant thereto, on, to wit, the 1st day of January, 1892, to plaintiff, and that the same is now her property."

The defendant interposed 29 special pleas. The substance of all of these pleas, material to the case on the present appeal, is sufficiently set forth in the opinion, with the exception of the 8th and 29th.

The 8th plea was as follows: "(8) For further answer, the defendant says, that after the policy named in the complaint was issued, H. A. Feibelman, to whom said policy was issued, executed a mortgage to the South Side Savings Bank, a body corporate, upon the three pool tables named in the complaint, the same being a part of the property insured, which rendered said policy void under the terms and conditions thereof." To this plea the plaintiff demurred upon the ground that even though the property mentioned in said plea had been mortgaged to the South Side Savings Bank, yet, nevertheless, it would not render void the policy as to the other property covered by the insurance, and is, therefore, no answer to the plaintiff's complaint. This demurrer was sustained, and the defendant duly excepted.

The 29th plea was as follows: "(29) For further answer to the 3d count, defendant says, that it was provided and stated in the policy of insurance sued on that no suit in law or equity shall be sustained thereon, unless commenced within twelve months next after the fire, and defendant avers that more than twelve months elapsed after the fire which destroyed or damaged the property mentioned in said count before said count was filed, and that by reason thereof the cause of action set out in said count cannot be sustained and is barred." The plaintiff demurred to this plea. The demurrer was sustained, and the defendant duly excepted.

The evidence in the case tended to show that on September 3, 1891, H. A. Feibelman procured a policy of insurance with the Manchester Fire Assurance Company. This policy is set out in the bill of exceptions. That at the time of the issuance of said policy, H. A. Feibelman was engaged in the liquor business as a saloon keeper in the city of Birmingham, and that the policy was taken out on specified fixtures, pool tables and merchandise. That M. J. Feibelman was the agent and general manager for H. A. Feibelman, and was in charge of the business as such. That on January 1, 1892, H. A. Feibelman sold and transferred by bill of sale to E. Feibelman, the plaintiff in this suit, who was his stepmother, the business and stock of goods on hand. That to the bill of sale by which this transfer and sale were made, M. J. Feibelman signed the name of H. A. Feibelman. That on January 10, 1892, the property embraced in the bill of sale, together with such goods as had been purchased between the 1st and 10th of January, were destroyed by fire. The evidence further tended to show that the consideration of the sale from H. A. Feibelman to E. Feibelman was $1,700; that of this amount $175 and $225 were paid in cash; that H. A. Feibelman was indebted to E. Feibelman in the amount of $500, which debt was canceled as a part of the consideration, but as to the payment of the balance, the witness did not know how it was made.

The plaintiff's testimony further tended to show that defendant's adjuster, one Witherbee, told M. J. Feibelman, who was in charge of the business at the time of the fire, as a representative of E. Feibelman, that his company would not pay anything for the loss, by reason of the fact that the city authorities were going to have said Feibelman arrested for burning the house; but that, subsequently, said adjuster offered to pay said Feibelman $175 and dismiss the prosecution against him, if he would surrender the policy.

There was also evidence for plaintiff, furthermore, tending to show that when defendant's adjuster came to examine into the loss, that he required plaintiff's agent to bring the books of plaintiff to the office of the agent of the company in Birmingham, and to make out an itemized list of the property injured or destroyed, and the adjuster put down the figures as they were called out from plaintiff's books, and that the amount aggregated $1,404; that this was sworn to by M. J. Feibelman, and signed by him in the name of E. Feibelman; that he subsequently, upon being asked, stated that he was not E. Feibelman, but that his name was M. J. Feibelman.

The testimony for the defendant tended to show that after the fire the barrels and kegs were examined and found empty; that the saloon had evidently been looted before the fire; that the fixtures were scorched and blackened; that there were few goods of any kind in said store. The testimony further tended to show that when defendant's adjuster came, M. J. Feibelman met him in the agent's, Hardeman's, office, and made an affidavit as to property destroyed, and signed the name of E. Feibelman, the adjuster, the agent and the notary all supposing that he was E. Feibelman; that when it was discovered he was not E. Feibelman, the adjuster demanded his authority; that he claimed to have a power of attorney, and was asked to produce it, and being unable to do so, the adjuster refused to treat further with him until he could produce his authority, which he never did, and the plaintiff was never met or communicated with by the adjuster; that there was no adjustment of the loss, but M. J. Feibelman merely called a list of the property destroyed or injured, and the adjuster put them down as they were called out from plaintiff's books, and the list was sworn to by M. J. Feibelman, and the name of E. Feibelman subscribed thereto by M. J. Feibelman, before it was discovered that he was not E. Feibelman; that defendant's adjuster never offered to pay plaintiff or her agent any amount, and never refused to pay, but did refuse to treat with M. J. Feibelman, because he could not produce his authority. The defendant's testimony further tended to show that at the former trial, M. J. Feibelman testified that the reason the new barrel of whisky was billed to H. A. Feibelman, was that it was ordered in December, 1891; but the bill itself shows that the order was given the 2d day of January, 1892, the day after the alleged sale. The other tendencies of the evidence necessary to an understanding on the present appeal are sufficiently stated in the opinion.

Upon the introduction of M. J. Feibelman, as a witness for the plaintiff, he testified that at the time of the transfer from H. A. Feibelman to E. Feibelman, of the property which was covered by the policy of insurance, he, M. J. Feibelman, was the general manager, and was conducting the business for H A. Feibelman; that he acted for H. A. Feibelman under a power of attorney; that said power of attorney was offered in evidence, and the defendant objected on the ground that it was not self-proving, and before it could be admitted in evidence its execution would have to be proven by the notary public before whom it was acknowledged, the acknowledgment not being as required by the Alabama statute. This objection was overruled, and the defendant excepted. Said power of attorney was then read to the jury, and is in words and figures as follows, to wit: "State of Mississippi. Warren County. Know all men by these presents, that I, H. A. Feibelman, of said county and state, have this day constituted and appointed, and do by these presents constitute and appoint, M. J. Feibelman my true and lawful attorney, for me and in my name to purchase, sue and collect, and all and generally my business in my bar which I own in the city of Birmingham in the state of Alabama, giving and granting unto my said attorney, full power and authority to do all acts necessary and...