Phoenix Ins. Co. v. Copeland

• Decision Date: 17 April 1889
• Citation: 86 Ala. 551,6 So. 143
• Parties: PHOENIX INS. CO. v. COPELAND.
• Court: Alabama Supreme Court

6 So. 143

86 Ala. 551

PHOENIX INS. CO. v. COPELAND.

Supreme Court of Alabama

April 17, 1889

Appeal from circuit court, Chambers county; JOHN M. CHILTON, Special Judge.

Action by Alpheus T. Copeland, as assignee of Mrs. Dora Roberts against the Phoenix Insurance Company, on a policy of insurance against loss by fire, which Mrs. Roberts had effected with the defendant. The negotiations were carried on through John T. Roberts, the husband of Mrs. Dora Roberts acting as her agent, and W. S. Jackson, as agent of the defendant. The policy contained a stipulation that it should be void "if the assured shall have, or shall hereafter make, any other insurance on the said property, or any part thereof, whether valid or not, without the consent of the company written thereon; and if the said property, or any part thereof, is mortgaged, or otherwise incumbered, either prior or subsequent to the date hereof, without the consent of this company written thereon," and it reserved to the insurance company the right to rebuild, and limited its liability in event of loss or damage to "three-fourths of the cash market value of the property at the time immediately preceding such loss or damage; the amount of loss or damage to be estimated according to the actual cash value at the time, and to be paid sixty days after proof of loss," etc., "unless the property be replaced, or the company shall have given notice of their intention to rebuild or repair the damaged premises." The house was destroyed by fire, and the policy was assigned by Mrs Roberts and her husband to the plaintiff. The defendant pleaded the general issue and 11 special pleas, but demurrers were sustained to all the special pleas, except the ninth tenth, and eleventh. The ninth plea averred that the policy was forfeited and void, because of misrepresentations by J. T. Roberts, as agent for his wife, is stating to defendant's agent, with whom he was negotiating for the policy, that there was no mortgage or other incumbrance on the property, when there were then two outstanding mortgages. The tenth plea claimed that the policy was void, because Roberts falsely represented to defendant's agent that there was no other insurance on the property, when there was other insurance then on the property to the amount of $800. The eleventh plea asserted that the house was "fraudulently and intentionally destroyed by fire, with the knowledge and consent of the payee of said policy." To these pleas there were three replications, to which there were demurrers. The court sustained the demurrer to the first replication, and overruled the others.

On the trial J. T. Roberts testified, for plaintiff, that while negotiating with Jackson, the agent, for the policy, and being asked whether there was any mortgage or other incumbrance on the property, he showed Jackson the mortgage which he and his wife had executed to Copeland, from whom they bought the property, and in which they assumed the payment of two outstanding mortgages, and that Jackson expressed his satisfaction with the title. Jackson, testifying for defendant, denied this, and stated that Roberts, in answer to his inquiries, said that there was no mortgage or other incumbrance on the property. Defendant then asked witness "whether he would have issued the policy if he had known that there was a mortgage or other incumbrance on the property." Also, "whether he had any authority to issue the policy sued on, on incumbered property." These questions were excluded. The plaintiff introduced a witness, a builder, who testified that he knew the house burned, and that he estimated the cost of the building at $2,800. On cross-examination, he having stated that he built, with other houses, one in Chipley, Fla., for a Mr. Hardy, he was asked by the defendant's counsel "if he did not know that one Mitcham built that house for Mr. Hardy." The court excluded this question. The defendant introduced Charles Stevens as a witness, who testified that he was now a builder of houses; that he built many houses every year, and had recently built houses three miles distant from the house that was burned; that he knew the value of building material and labor there, and what they would cost where this house was burned; that he could tell the dimensions of the house from the pillars and marks on the chimneys, which were standing; and that when he made an estimate of the cost of rebuilding, at the instance of defendant, J. T. Roberts described the house to him in detail." Defendant then asked the witness: "What was the value of such a house as the one Roberts described?" The court sustained an objection to this question, and defendant excepted. Defendant then described hypothetically a house which, as defendant insisted, was substantially similar to that burned, and asked him if he knew the value of such a house; to which he answered that he did, and gave his opinion of its value. The defendant then asked him "what he offered to rebuild such a house for." The court excluded this question. The defendant introduced two witnesses, who were present at the fire, and who testified that when they reached the house they saw no one there but J. T. Roberts; that he was barefooted, and had on a long night-gown, and said that "he had no time to get on his pants, being almost stifled with the smoke when he awoke;" that they asked him the time of night, and he said that it was after 2 o'clock, after he had pulled open his gown and taken out his watch and looked at it; and that in his doing this they saw that he had on his pants under his gown. Roberts denied that he owned or had a watch; and one Eady, another witness for the plaintiff, testified that said Roberts did not own a a watch at that time. Defendant objected to the testimony of Eady, and also of Roberts, as to the latter's ownership of a watch. Judgment for plaintiff. Defendant appeals.

W. J. Samford and H. C. Tompkins, for appellant.

N. D. Denson, for respondent.

STONE C.J.

The trial court sustained plaintiff's demurrers to...