New Brunswick Fire Ins. Co. v. Nichols

• Decision Date: 07 June 1923
• Docket Number: 6 Div. 614.
• Citation: 97 So. 82,210 Ala. 63
• Parties: NEW BRUNSWICK FIRE INS. CO. v. NICHOLS.
• Court: Alabama Supreme Court

97 So. 82

210 Ala. 63

NEW BRUNSWICK FIRE INS. CO. v. NICHOLS.

6 Div. 614.

Supreme Court of Alabama

June 7, 1923

Rehearing Denied June 28, 1923.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Suit on fire insurance policy by Wade H. Nichols against the New Brunswick Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

McClellan J., dissenting in part.

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

Cabaniss Johnston, Cocke & Cabaniss, of Birmingham, for appellee.

MILLER J.

Wade H Nichols, plaintiff and appellee, brings this suit against the New Brunswick Fire Insurance Company, a corporation, on a fire insurance policy. The building burned was used for a moving picture show or theater, and the fire occurred on November 23, 1919. The amount of the policy is $1,500, and was dated September 25, 1919. There was judgment for the plaintiff, and the defendant appeals from it.

There was a demurrer to the complaint as amended, which was overruled by the court, and this ruling of the court is assigned as error; but we cannot find where it is argued and insisted on in the brief. Under these circumstances it will be considered waived in this court. Hodge v. Rambo, 155 Ala. 175, headnote 7, 45 So. 678. However, it follows practically and substantially the form, No. 13, p. 1196, Code 1907, under section 5382. There was a count claiming the 25 per cent. penalty allowed and provided for under sections 4594 and 4595 of the Code of 1907, as amended Gen. Acts 1911, p. 316.

The defendant pleaded general issue and 10 special pleas. Demurrers were sustained to all the special pleas except Nos. 3, 4, 10, and 11.

Plea 3 sets up the invalidity of the policy because the plaintiff was not the sole and unconditional owner of the property. Plea 4 states the building insured was on ground not owned by the plaintiff in fee simple. Pleas 10 and 11 each set up the insufficiency of the plaintiff's proof of loss.

The plaintiff filed general denial and seven special replications, setting up waivers of the policy provisions pleaded by defendant. Demurrers of defendant to plaintiff's replications 2 to 7, inclusive, were overruled, and sustained as to replication 8. The plaintiff pleaded in these replies that the condition set up in pleas 3 and 4 had been waived because defendant had notice of the state of plaintiff's title before issuing the policy, and also because, with knowledge of the alleged forfeiture, it had caused plaintiff to be put to trouble and expense by negotiating and dealing with plaintiff for a settlement of the loss. To the pleas numbered 10 and 11 that proofs of loss had not been filed plaintiff replied a denial of liability by defendant before the expiration of the time for filing such proofs. The defendant filed 18 rejoinders, plaintiff's demurrers being sustained to all, except the one that was a general denial.

There are 106 errors in all assigned in this case. In the midst of this mist and maze and mammoth assignment of alleged errors in pleading, proof, and charges, given and refused, which is permissible under our practice, we do not know where to begin. Errors from 1 to 29, both inclusive, are assigned to rulings by the court on pleadings; from 30 to 63, both inclusive, are based on rulings of the court on the admission or rejection of evidence; and from 64 to 106, both inclusive, are on written charges given or refused by the court. Error numbered 1 was overruling defendant's demurrers to the complaint. We have considered it. The complaint states a cause of action. The attorneys commence on error assigned No. 64, and we will do likewise.

The court gave the general affirmative charge with hypothesis in favor of the plaintiff. It was in writing, and requested by the plaintiff, and reads as follows:

"If the jury believe the evidence, they must return a verdict for the plaintiff in such sum as they may believe from the evidence he is entitled to recover."

This alleged error is numbered 64 by appellant.

The policy sued on was admitted in evidence. "The proof of loss was also admitted in evidence duly sworn to by plaintiff, and its delivery to defendant duly shown."

There was testimony tending to show that the defendant belonged to or was connected with a tariff association within the meaning of sections 4594 and 4595, as amended in General Acts 1911, p. 316, at the time of making the policy, or subsequently before the trial of the case; and this question was properly submitted by the court to the jury. The amount of the damages sustained by plaintiff, and whether he was entitled to the 25 per cent. penalty, were left to the jury. The defendant denied liability under the policy before the time was out for making and filing proof of loss with it. The evidence made out a clear and undisputed right in plaintiff to recover; and the court properly gave that charge, unless there was evidence proving or tending to prove the averments in either plea 3 or 4 of defendant.

On the back of the insurance policy is the following clause, which is made a part of the policy:

"This entire policy unless otherwise provided by agreement indorsed hereon or added hereto shall be void *** if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple. ***"

Pleas 3 and 4 each set forth the foregoing provision in the policy; plea 3 averred the policy was invalid because plaintiff was not the sole and unconditional owner of the property insured, and plea 4 averred the policy was void because the building insured was on ground not owned by the plaintiff in fee simple.

Did the evidence prove or tend to prove the averments of either plea 3 or 4?

Charles and I. Piazza entered into a written lease contract with Harry S. Ford on May 24, 1919, leasing to Ford the lots in question from July 1, 1919, until June 30, 1922, for $1,750, payable in monthly installments of $40 per month during the first 3 months and $50 per month during the remaining 33 months of the lease; the lease authorizing Ford to erect a building on the ground or lots, and giving him the right to go into immediate possession of it for that purpose.

The lessors had a lien on the building for the rent; and when the contract terminated and the rent was paid, Ford or his assigns had the right to remove the building. Charles and I. Piazza executed and delivered to Harry S. Ford a written instrument, in substance, as follows: I. Piazza and Charles Piazza, for and in consideration of a certain rental lease contract of even date hereof, and $1 paid by Harry Ford, "granted, bargained and sold to the said Harry Ford the option or right until June the 30, 1922, to purchase from them the lots described in the said lease, by Ford, his agents or assigns, paying $7,000 cash to them at any time between the date thereof and June 30, 1922," with the following provisions:

"Then and in such event the grantors hereto will surrender free of cost any and all unpaid lease rental notes so specified in said lease rent contract, and they hereby agree and bind themselves that if the said Harry Ford or his agent or assigns shall conclude to purchase said tract or parcel of land from them at any time before the 30th day of June, 1922, and shall comply with said terms, they will make and execute a warranty deed conveying to said Harry Ford, or his agents, or assigns, a full, good and sufficient warranty title to said tract or parcel of land."

Harry Ford erected the frame building on these lots, permitted by the lease, and which is involved in the subject-matter of this suit. On August 28, 1918, for a valuable consideration, he sold and conveyed by written deed this building on these lots to the plaintiff, W. H. Nichols; and on the same day (August 28, 1919) Harry Ford, by another written instrument, for valuable consideration, transferred, assigned, and conveyed said lease contract to the plaintiff, and on the same day also transferred and assigned, for a valuable consideration, in writing, the said option for the purchase of the lots described in the lease contract. Ford was in possession and control of the building and lots until he sold the building and transferred his rights to the lots to plaintiff, and then plaintiff, under his purchase, went into possession of the property, and was in possession of it when the building was injured or destroyed by fire. The policy sued on was issued September 25, 1919, and the fire occurred November 23, 1919. Plaintiff had never tendered or paid the $7,000 purchase price for the lots to I. and Charles Piazza.

The foregoing is, in substance, all of the evidence as to ownership of the building by plaintiff and his title or right to the lots on which it was erected. The lease contract and the option purchase contract purport in their body to have been entered into and made on the same date the option purchase contract refers in its body to the lease contract, the consideration for the one being the execution of the other; but they were executed on different dates from those disclosed by the face of the contracts. Both instruments from their bodies were in contemplation of the parties when executed. The option contract was executed because of the execution of the lease contract; each sheds light on the other, and they must be construed together by the court as constituting one transaction between the parties.

Insurance policies are prepared with care and skill to limit as much as possible liability. It has been and is the policy of this court to strictly construe conditions limiting or avoiding liability against the insurer, and to construe them liberally in favor of the insured. Queen...