Neuberger v. Preferred Acc. Ins. Co. of New York

• Decision Date: 18 January 1921
• Docket Number: 1 Div. 392 [*]
• Parties: NEUBERGER v. PREFERRED ACC. INS. CO. OF NEW YORK.
• Court: Alabama Court of Appeals

89 So. 90

18 Ala.App. 72

NEUBERGER v. PREFERRED ACC. INS. CO. OF NEW YORK.

1 Div. 392 ^[*]

Court of Appeals of Alabama

January 18, 1921

Rehearing Denied Feb. 15, 1921

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Action by Samuel J. Neuberger against the Preferred Accident Insurance Company of New York upon a policy of insurance covering an automobile risk. The court sustained demurrers to plaintiff's replication, whereupon plaintiff took a nonsuit and appealed. Affirmed.

Mell A Frazer and Harry T. Smith & Caffey, all of Mobile, for appellant.

Stevens McCorvey & McLeod, of Mobile, for appellee.

MERRITT J.

The plaintiff brought suit to recover of the defendant an amount alleged to be due by virtue of a contract of insurance whereby the defendant indemnified the plaintiff to the amount of $5,000 which might be occasioned on account of the maintenance, use, and operation of a certain Chandler Automobile. The counts of the complaint proceeded on the idea of a breach the contract of insurance in not indemnifying the plaintiff against liability for a loss falling within the terms of the policy. The defendant filed a plea of the general issue, a plea of payment, and a special plea setting up a release of the claim in suit. This plea is in words and figures as follows:

"The defendant says that the plaintiff's claim or demand is incident to and grows out of the collision of plaintiff's automobile with one Florence Goodwyn, and this defendant is released and forever discharged thereof by reason of a certain instrument of writing made and executed by the plaintiff on, to wit, the 30th day of April, 1918, and delivered to the defendant, in words and figures as follows:

" 'Mobile, Ala., April 30, 1918.

" 'For value received, I hereby release and discharge the Preferred Accident Insurance Company of New York from all possible claims or demands I may have against it incident to and growing out of the collision of my automobile with Miss Florence Goodwyn, covered by its policy in force in 1917.

" 'This release is part of the compromise and settlement of her suit against me arising out of that collision.

" '[Signed] S.G. Neuberger.

" 'Witness:

" 'Harry H. Smith.' "

To this special plea the plaintiff filed two replications; the third being in words and figures as follows:

"For further replication to the third plea the plaintiff says that the instrument in writing quoted in said plea was obtained from him under the following circumstances and conditions: The defendant on, to wit, the 14th day of April, 1917, entered into a contract of insurance with the plaintiff by which the defendant undertook and agreed, in consideration of the payment of a premium of $63, to indemnify the plaintiff against loss by reason of the liability imposed by law upon the plaintiff for damages on account of bodily injuries, including death at any time resulting therefrom, accidentally suffered, or alleged to have been suffered, while said contract or policy of insurance was in force, by any person or persons by reason of the ownership, maintenance, or use within the limits of the United States or Canada of a Chandler automobile, factory No. 29354, type or model 17, style of body, touring, built in 1917, kind of power, gas, horse power 27, and the plaintiff avers that while said policy was in force one Florence Goodwyn sustained bodily injuries by reason of the ownership, maintenance, or use by the plaintiff, within the limits of the United States of America, of said automobile; that thereafter she filed suit against the plaintiff on account of said injuries in the circuit court of Mobile county and recovered a judgment on account of said injuries for the sum of $6,500 and costs of court; that the defendant claimed and asserted that in and by the terms of said contract it was given the right to control all legal proceedings in said cause, including an appeal of said cause to the Supreme Court of Alabama; that said defendant, after said judgment was recovered and before any appeal was taken, had the opportunity to compromise said judgment for the sum of $5,000 and the costs of court, but in order to force and coerce this plaintiff to pay a portion of said $5,000, for which the defendant had agreed to indemnify the plaintiff, the defendant refused to accept said offer of compromise and refused to allow the plaintiff to do so except on condition that it would be released from its liability to him under its contract of insurance, and the defendant threatened to appeal this case to the Supreme Court of Alabama, although the defendant knew that there was no reasonable hope of its reversing the judgment of the trial court or of reducing the same, and the plaintiff, in order to save himself from being compelled to pay the amount of the judgment over the sum of $5,000 as well as the costs of court and a penalty of 10 per cent. on the amount of said judgment for $6,500 and interest on said judgment, was forced and compelled by the said action of the defendant in refusing to compromise and settle, or to

allow the plaintiff to compromise and settle, said judgment, as aforesaid, for the sum of $5,000 unless the plaintiff would pay the sum of $500 and the costs of court, to pay and did pay the sum of $555.95, and did sign the instrument copied in the third plea under the aforesaid coercion and compulsion; wherefore the plaintiff says that said instrument is null and void and is not binding on this plaintiff."

The second replication is identical with the third except that it does not allege knowledge on the part of the defendant that there was no reasonable hope of reversal, but only that such was the fact. The defendant filed five grounds of demurrer to each of said replications, which were sustained by the court and the plaintiff took a nonsuit on account of...