Ogburn-Griffin Grocery Co. v. Orient Ins. Co.

• Decision Date: 07 November 1914
• Docket Number: 755
• Citation: 188 Ala. 218,66 So. 434
• Parties: OGBURN-GRIFFIN GROCERY CO. v. ORIENT INS. CO.
• Court: Alabama Supreme Court

66 So. 434

188 Ala. 218

OGBURN-GRIFFIN GROCERY CO. v. ORIENT INS. CO.

No. 755

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by the Ogburn-Griffin Grocery Company against the Orient Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

The substance of the plea is sufficiently set out. The following charges were given at the request of defendant:

(1) The court charges the jury that plaintiff has sued defendant for loss and damage which the plaintiff claimed to have been done to a certain stock of groceries, tobacco, and other merchandise by fire, and, if the jury should find for plaintiff, then they must include in the damages to the said stock of goods only such damages as the jury may be reasonably satisfied was done as the direct result of fire and water, and must not include in such damages any loss that the plaintiff may have suffered by reason of damages done to the stock of goods in any other way.

(2) This is a suit by plaintiff against defendant for the recovery of damages done to a certain stock of goods by reason of fire; and if the jury are reasonably satisfied from the evidence that the building in which said goods were contained collapsed or fell on account of its inherent weakness, or from any other cause other than fire, then plaintiff could not be entitled to recover against defendant for any damages which may have been caused to said stock of goods by the falling of the building, even though the jury may believe that the building was on fire before it fell.

(3) If the jury find from the evidence that the building in question, in which plaintiff's stock of goods were stored, caught fire before it fell to the ground, but that none of the plaintiff's goods were on fire prior to the collapse of the building, and if the jury are further reasonably satisfied from the evidence that the building collapsed and fell by reason of its inherent weakness, or for any other cause other than fire, and that the only damage that accrued to the stock of goods occurred after such collapse, and by reason of the fact that the building fell and by reason of damages done to the goods by fire after the collapse, then the jury should find for defendant.

Webb &amp McAlpine, of Mobile, for appellant.

Bestor & Young, of Mobile, for appellee.

GARDNER J.

This was a suit upon a fire insurance policy covering a stock of groceries belonging to the Ogburn-Griffin Grocery Company brought by appellant against appellee.

The defendant pleaded the general issue and also several special pleas setting up the provisions of the policy, whereby it was provided that:

"If a building or any part thereof fall, except as a result of fire, all insurance on such building or its contents shall immediately cease."

These special pleas alleged that the building which contained said stock of goods, or a substantial part of said building, fell not as a result of fire, but as the result of its own inherent defects, weaknesses, overloading, etc. There was also an attempt to set up, by several special pleas, the breach by the plaintiff of certain conditions of the "iron-safe clause"; but these pleas finally went out on demurrer.

It appears from the record, therefore, that the real issues litigated between the parties on the trial of the cause was that raised by those pleas setting up the avoidance of the policy because the building or a substantial part thereof fell, not as a result of fire, but of its own inherent weakness.

The trial resulted in a verdict by the jury in favor of the defendant, and the plaintiff prosecutes this appeal.

The assignments of error relate to the action of the court in giving certain written charges requested by the defendant. The first assignment relates to charge numbered 1, given for the defendant. This charge relates to the damages recoverable, and is based upon the hypothesis "if the jury should find for the plaintiff." The jury, however, returned a verdict for the defendant, and, if there was any error in giving the charge, it was without injury. Huson Ice & M. Works v. Bland & Chambers, 167 Ala. 391, 52 So. 445; B.R.L. & P. Co. v. Demmins, 3 Ala.App. 359, 57 So. 404; Gordon v. Sullivan, 116 Wis. 543, 93 N.W. 457; 2 Am.Dig. (Dec. Ed.) § 1068, subd. 4.

The criticism of counsel in brief, directed to this charge, only tends to show that the charge had a misleading tendency. If the falling of the building was the result of fire, then, of course, damage done to the goods of the plaintiff by the falling walls and debris would be the result of the fire and within the terms of the policy. 2 May on Insurance, § 412. If the plaintiff apprehended that the charge as given might mislead the jury, or had a misleading tendency, the remedy was to ask an explanatory charge. It is the general rule recognized by this court that the giving of a charge with...