Resolute Fire Ins. Co. v. O'Rear
| Decision Date | 27 June 1950 |
| Docket Number | 6 Div. 71 |
| Parties | RESOLUTE FIRE INS. CO. v. O'REAR. |
| Court | Alabama Court of Appeals |
Chas. E. Tweedy, Jr., and Jas. L. Beech, Jr., of Jasper, for appellant.
Gilbert E. Johnston, of Birmingham, for appellee.
These charges were refused to defendant:
In the court below the plaintiff recovered a judgment.
This is the second appeal of this cause of action. Resolute Fire Ins. Co. v. O'Rear, 34 Ala.App. 249, 38 So.2d 616.
This appeal was submitted on the merits only in this court on April 18, 1950. On April 29 the appellee filed a motion to dismiss the appeal. He complains in this manner of defects in the appellant's appeal bond. There is no merit in this belated motion. Title 7, § 806, Code 1940; Twinn Tree Lumber Co. v. Day, 181 Ala. 565, 61 So. 914.
Ike O'Rear, the appellee, purchased the automobile in question in 1945. At that time the Sanders Insurance Agency of Jasper, Alabama, was local agent for the Baltimore American Insurance Company. The local agency wrote a policy of insurance on the Baltimore American Insurance Company covering Mr. O'Rear's car. This policy was introduced in evidence and shows that it insured the automobile against loss for a term of one year, beginning January 1, 1946.
The Sanders agency also financed the unpaid balance on the purchase price of the car.
On June 19, 1946, C. K. Knox of Knox & Smith, the general agents of the Baltimore American Insurance Company, by letter, advised the Sanders Insurance Agency that all insurance policies issued by his principal through the Sanders Insurance Agency were to be cancelled on or before July 1, 1946. The letter contains the statement: 'Return premiums should be allowed effective the date the Company is actually relieved of liability under each individual policy.'
In reply these letters followed:
'Boston Insurance Company
Boston, Massachusetts
Sanders Insurance Agency, Agents
General Insurance
Tweedy Building
Jerome, Cowan & Mahone, Jasper, Alabama
Managers
June 20, 1946
Atlanta, Georgia
C. K. Knox
Birmingham, Alabama
Dear Sir:
I am in receipt of you (sic) letter of June 19, in regards to the insurance policy outstanding. We are and have been taking up every policy that we could that was outstanding in the Baltimore American. We will continue to do so.
As to the reinsuring with another company, all the outstanding which the Baltimore American has though (sic) this office, I do not know what to do as I have never been in this position before. If yoy have any suggestions to make, I would appreciate your advising me.
Very truly yours,
Sanders Ins. Agcy.
Clayton Sanders'
'Boston Insurance Company
Boston, Massachusetts
Sanders Insurance Agency, Agents
General Insurance
Tweedy Building
Jerome, Cowan & Mahone, Jasper, Alabama
Managers
June 22, 1946
Atlanta, Georgia
C. K. Knox
Mobile, Ala.
Dear Sir:
'I am in receipt of your letter dated June 20, 1946 in regards to the automobile cancellation in the Baltimore American Insurance Company.
'I am taking this up with another company with regards to all outstanding insurance with the Baltimore American Ins. Co. Property fire, dwelling, and automobiles.
'I don't believe that I would be able to place reinsurance on the automobile alone. Is it my understanding that you only want the automobile policies cancelled and leave the fire insurance in force?
Very truly yours,
Sanders Ins. Agcy.
Clayton Sanders'
'Boston Insurance Company
Boston, Massachusetts
Sanders Insurance Agency, Agents
General Insurance
Tweedy Building
Jerome, Cowan & Mahone, Jasper, Alabama
Managers
Atlanta, Georgia
July 25, 1946
C. K. Knox
Atlanta, Georgia
Dear Mr. Knox:
Re: Reinsurance of auto business
We have this day received a copy of the letter which was written to the Southern Accentance Corporation, Atlanta, Georgia, asking them to return all policies that they hold.
I have talked with one of the other company's special agent, and he said that he would try to make arrangements to reinsure all the business in the Baltimore American. Just as soon as I have received an answer from him, I will be able to give you a definite answer, just what steps will be taken.
Very truly yours,
Sanders Ins. Agcy.
By: Vachel L. Posey'
On August 8, 1946, the Sanders Insurance Agency wrote the appellee as follows:
'Sanders Insurance Agency
Tweedy Building
Jasper, Alabama
August 8, 1946
Ike O'Rear
Jasper, Ala.
Dear Sir:
Please take notice and be advised; that the Baltimore American Insurance Company of New York has conaclled (sic) your Insurance Policy which covered the Auto which we financed for you. Cancellation effective August 3, 1946. This action was taken by the Company due to the fact that the losses were to an excess in our county and at the present time you have no insurance coverage on your automobile through this office.
The Sanders Insurance Agency has always made all efforts towards giving the best of service possible to their patrons; however the prese (sic) condition is beyond our control. Therefore, we ask for your kind consideration and co-operation at this time in our efforts to be of greater service to you in the future. We solicit your carefulness at this time and assure you that we are making all possible efforts to re-insure your security.
If you will drop by our office we will be very glad to discuss this matter with you and will try to explain the whole question to you.
Yours respectfully,
Sanders Ins. Agcy.
Clayton Sanders'
After the receipt of this letter Mr. O'Rear had a conversation with Mr. Clayton Sanders of the firm of Sanders Insurance Agency. The substance of what was then said is delineated in our former opinion. After this conversation, Mr. O'Rear sustained the claimed damages to his car.
Over appellant's timely objections Mr. C. K. Knox was permitted to answer this question in the affirmative: 'Was the policy cancelled?' Reference is here made to the indicated policy with the Baltimore American Insurance Company.
Insistence is made by grounds of objections and in brief of counsel that this called for an unauthorized conclusion of the witness.
Unquestionably a witness should not be permitted to state that a policy is cancelled and by the statement mean that as a matter of law there was a cancellation. We see no prohibition of allowing a general agent of an insurance company, who has knowledge of the facts relating to the cancellation, to state that a policy with his company has been cancelled, and mean by the assertion that so far as the mechanics and records of his company are concerned the policy is regarded as no longer in force and effect, and therefore from this point of view the contract has been cancelled.
But, a definite decision on this question aside, the authorities are committed to the view that it is not reversible error to allow a witness to state his conclusion in answer to a question, when the witness has already stated facts upon which his conclusion is based. Haas Bros. v. Craft, 9 Ala.App. 404, 64 So. 163.
Where a witness has testified without objections as to a matter inquired about, it is harmless error to overrule an objection to a similar question. Rutledge et al. v. Rowland, 161 Ala. 114, 49 So. 461.
Where evidence of a fact has been introduced in evidence without objections, it is not reversible error to permit the same fact to be subsequently shown over objections. Walling v. State, 15 Ala.App. 275, 73 So. 216.
We think that a fair analysis of the record leads to the conclusion that the above rules have purposeful application in the case at bar.
Mr. Clayton Sanders was interrogated by appellant's counsel with reference to the policy with the Baltimore American Insurance Company. The court sustained objections to questions seeking to ascertain from the witness whether or not this policy had ever been cancelled. Prior and subsequent to these rulings the witness, without objections, answered these questions in substance. To illustrate:
'
On cross-examination:
.'
The witness testified with reference to the letter dated August 8, 1946, copied supra, as follows:
(Emphasis ours.)
The rule prevails that it is error without injury to sustain an objection to a question which the witness has answered previously or answers subsequently. Moore-Handley Hdw. Co. v. Williams, 238 Ala. 189, 189 So. 757; Borden & Co. v. Vinegar Bend Lumber Co., 7 Ala.App. 335, 62 So. 254.
It appears that Mr. O'Rear first filed suit against the ...
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