Phoenix Assur. Co. of London v. McAuthor

• Decision Date: 17 December 1897
• Parties: PH×NIX ASSUR. CO. OF LONDON v. MCAUTHOR.
• Court: Alabama Supreme Court

22 So. 903

116 Ala. 659

PH×NIX ASSUR. CO. OF LONDON v. MCAUTHOR.

Supreme Court of Alabama

December 17, 1897

Appeal from circuit court, Henry county; J. W. Foster, Judge.

Action by F. M. McAuthor against the Ph nix Assurance Company of London. Judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff counted in the Code form upon a policy of fire insurance which was alleged to have been issued by the defendant upon the plaintiff's dwelling house.

The defendant pleaded the general issue and by special pleas that at the time of the alleged fire the policy of insurance had been canceled by the defendant, by virtue of an agreement with the plaintiff and in accordance with one of the stipulations of the policy, five days' notice having been given of such intention to cancel said policy, as required by such stipulation. Upon these pleas issue was joined.

The plaintiff, as a witness in his own behalf, testified that he had been insuring his house with the defendant company; that he had a policy with the defendant that expired on November 21, 1894; that about the 1st of December, 1894, he met Frank Murphree, the agent of the defendant, who told him that he had renewed his insurance and issued a new policy on his house for the same amount as that contained in the policy which expired on November 21st, thereby renewing the insurance with the defendant. That he, plaintiff, told said Murphree that was all right and gave him his note for the premium on the policy, which note was made payable 60 days after date; that subsequently he paid the note so given to said Murphree by doing some work for Murphree. The defendant objected to this latter testimony, upon the ground that said Murphree was not shown to have been authorized to receive payment for the premium in anything except money. The court overruled the objection, and the defendant duly excepted. The plaintiff, as a witness, further testified, that he had never seen the policy sued on; that it had not been delivered to him by Murphree, the defendant's agent or any one else for the company, but that it was held for him by said Murphree; and that his house was destroyed by fire on October 16, 1895.

The plaintiff introduced as a witness in his behalf Frank Murphree, who testified that on November 21st he issued a policy in the name of the defendant company, insuring the plaintiff's dwelling house for one year from the date of the issuance of the policy, and shortly after said policy was written the plaintiff gave him his note for the premium payable 60 days after date; that at the time the policy was issued, he, Murphree, paid the premium to the defendant, but that he did not inform the defendant that the policy had not been delivered to the plaintiff, nor that the plaintiff had not, himself, paid the premium. That he, Murphree, retained the policy, and upon the plaintiff's failure to pay the note given for the premium, he notified him that if he did not pay the premium he would cancel the policy. That he gave the plaintiff five days' notice prior to the time the policy was canceled, that he would cancel the policy unless the premium was paid within five days, and that upon the plaintiff's failure to pay the premium, after the expiration of the five days' notice from the time given he, Murphree, canceled the policy and notified the plaintiff thereof. This witness further testified that he was a member of the firm which was the agent of the defendant company that the policy was not delivered to the plaintiff, but that he did not know where the policy was, and could not find it. That he could not give the contents of the policy nor the substance of its contents in full; but that it was issued at the time and for the period stated and upon certain property of the plaintiff, which he described in his testimony.

The defendant then objected to the testimony about the property contained in the policy, and the amount and date of the policy, upon the grounds (1) that the contents of the policy had not been shown; (2) that it sought to introduce only a part of the contract of insurance; and (3) because the policy had not been offered in evidence, nor had the substance of the contents of the policy been offered in evidence. This objection was overruled, and the defendant duly excepted. The defendant then moved to exclude the testimony of the witness Frank Murphree about the issuance of the policy, the date thereof and the amount of the policy, and the property embraced therein. This motion was based upon the following grounds: (1) Such witness was not shown to be the authorized agent of the defendant in the issuance of the policy. (2) Because the policy was the best evidence of what it contained and what it was. (3) Because the policy was not introduced in evidence, and the contents or the substance of the policy had not been introduced in evidence. The court overruled this motion, and the defendant duly excepted. The witness Frank Murphree stated in answer to the...