Ray v. Fidelity-Phoenix Fire Ins. Co.

• Citation: 65 So. 536,187 Ala. 91
• Decision Date: 14 May 1914
• Docket Number: 786
• Parties: RAY v. FIDELITY-PHENIX FIRE INS. CO.
• Court: Supreme Court of Alabama

65 So. 536

187 Ala. 91

RAY v. FIDELITY-PHENIX FIRE INS. CO.

No. 786

Supreme Court of Alabama

May 14, 1914

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by G.C. Ray against the Fidelity-Phenix Fire Insurance Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

W.F Finch, of Jasper, and W.L. Acuff, of Columbiana, for appellant.

Charles A. Calhoun, of Birmingham, for appellee.

SAYRE J.

Suit by appellant against appellee, substantially in Code form, on a policy of fire insurance issued to appellant. Defendant pleaded, inter alia, plea 4, that plaintiff had failed to make and render to it, within 60 days after the fire, a signed and sworn statement showing his knowledge and belief as to the time and origin of the fire, his interest and that of all others in the property, and any changes in the title etc., of the property since the issuance of the policy, as required by the terms thereof. Plaintiff replied, under a caption which showed that all replications were addressed severally and separately to each plea then on file, by the general replication denying the facts alleged in the pleas and by special replications setting up waivers of the various breaches of the stipulations of the policy alleged in the special pleas. The facts alleged in two of the special replications which need to be noticed were these, in short Replication 7, that before the expiration of the time for making proof of loss the defendant positively declined and refused to pay the damages claimed, and thereby waived compliance with that stipulation; replication 9, that defendant sent its adjuster, who had authority to bind defendant, to investigate the loss, and said adjuster, after being fully informed of all conditions touching defendant's liability under the policy, informed plaintiff that defendant was not liable.

Demurrer to the replication numbered 7 was sustained. No argument is made in behalf of this ruling, and no reason occurs to us why this replication was not a good reply to plea 4. A refusal to pay made in the circumstances alleged in this replication, though no reason therefor be assigned, amounts to a waiver of the notice and proof of loss. Firemen's Ins. Co. v. Crandall, 33 Ala. 9; 4 Cooley's Briefs, 3535.

Defendant's objection was sustained when plaintiff, to support the averments of replications 7 and 9, propounded a question calculated to elicit the fact that an agent of defendant had denied liability, and in the end the court gave the general charge for defendant. Appellee, without admitting error as to replication 7, would avoid the effect of the ruling as to it in any event, and would justify the other rulings stated above on the grounds that plaintiff's special replications in confession and avoidance of the plea relieved defendant of the burden of proving its plea, and that one plea proved, or taken as proved, rulings as to other issues the parties attempted to make are of no consequence on appeal, and further, and as part and parcel of its theory of the case, that the agent of defendant, whose denial of defendant's liability plaintiff offered to prove, was not shown to have authority to bind his company by a waiver.

Where a plaintiff replies to a special plea in confession and avoidance by a special replication in confession and avoidance without denying the facts of the plea, the defendant is not required to offer evidence in support of the plea; but where plaintiff takes issue upon the plea by the general replication, as did plaintiff in this case, and replies at the same time by a special replication in confession and avoidance, as he may do and as plaintiff did in this case, the burden of proving the plea remains with defendant, and until some evidence is offered in its support the issue tendered by the special replication is immaterial. This is the clear result of our cases. Lee v. De Bardeleben Co., 102 Ala. 628, 15 So. 270; Lucas v. Stonewall Ins. Co., 139 Ala. 487, 36 So. 40; Carroll v. Warren, 142 Ala. 397, 37 So. 687; Ferdon v. Dickens, 161 Ala. 181, 49 So. 888.

As to the evidence: It appeared without dispute that shortly after plaintiff's property was destroyed, after defendant...