Rogers v. Lumbermans Mut. Cas. Co.
| Decision Date | 03 November 1960 |
| Docket Number | 8 Div. 35 |
| Citation | 124 So.2d 70,271 Ala. 348 |
| Parties | Elizabeth J. ROGERS et al. v. LUMBERMANS MUTUAL CASUALTY CO. |
| Court | Alabama Supreme Court |
J. D. Carroll, Jr., Huntsville, for appellants.
Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
This suit for a declaratory judgment was filed by the Lumbermans Mutual Casualty Company, a corporation (appellee), on June 27, 1957, against John Rogers and others seeking a construction and interpretation of certain provisions of an automobile policy of insurance issued to John Rogers, one of the appellants.
For purposes of clarification it is well to state here that according to the record, including the evidence, John Rogers secured a divorce from his wife Elizabeth J. Rogers on February 26, 1957, and from that time they were not residents of the same household. After the divorce she married Guy Congo, on June 3, 1957. The policy of insurance was issued to John Rogers on September 22, 1956. The accident in which Guy Congo and Bill Adams claim to have been injured and thereby sustained the cost of medical expenses occurred on April 27, 1957. Sometimes in the record the former wife of John Rogers is referred to as Elizabeth Rogers and sometimes as Elizabeth Congo.
Named as respondents in the bill were John Rogers, Elizabeth Rogers, Guy Congo and Bill Adams. The purpose of the bill is to determine the liability of the Lumbermans Mutual Casualty Company (appellee) to Elizabeth Rogers (now Elizabeth Congo) and John Rogers under the collision or upset portion of the policy of insurance and under Coverage D and also to determine the liability to Guy Congo and Bill Adams under the provisions of Coverage C-1-Basic Medical Payments of the policy.
It is alleged in the bill that the complainant (appellee) denies coverage of the loss and denies coverage of the foregoing alleged losses and denies liability to the respondents which we have named as aforesaid, assigning the following grounds:
It is further alleged in substance that the parties to the suit have the right to have their respective rights adjudicated under the policy and that there exists an actual justiciable controversy between the parties on which substantial property rights are dependent.
Demurrers to the bill were filed by John Rogers, Elizabeth Rogers Congo and Guy Congo, which were overruled on May 22, 1959.
On December 18, 1957, John Rogers and Elizabeth J. Rogers filed suit in the Circuit Court of Madison County on the law side of the docket, seeking to recover on an insurance policy which was the subject of the declaratory judgment proceeding. The insurance company then obtained a temporary injunction against further proceedings in the case on the law side of the docket and made bond for such injunction.
After the demurrers were overruled all of the respondents then entered what are styled 'pleas.' There are a total of seven such pleas addressed to the 'complaint of the plaintiff and to each count thereof separately and severally.' The first 'plea' is a plea of the general issue. The second 'plea' is a denial of 'each and every allegation separately and severally.' The third and fifth 'pleas' undertake to set up an estoppel as a defense. The fourth, sixth and seventh 'pleas' assert waiver and estoppel in each plea.
The allegations of waiver and estoppel are substantially that the insurance company paid the claim the latter part of March or the first of April 1957 of a broken window in the Ford car to Elizabeth Congo and upon such claim being filed by her in the office of C. J. Waite, General Agent of the company, at which time the company had known that the policy of insurance on the car was in the name of John Rogers and not the name of the respondent, Elizabeth J. Rogers, and further that Elizabeth J. Rogers and John Rogers were divorced, living separate and apart in separate households and that Elizabeth Congo claimed title to the car and even after gaining knowledge of the foregoing, the insurance company failed to render the policy void, waived its right to insist upon the policy being void and failed to cancel the policy and is estopped to deny liability on the policy and the respondents did not forfeit any right or benefits to which they are entitled under the policy.
On the day of the trial, July 23, 1959, all respondents amended pleas 3, 4, 5 and 6 by alleging a 'denial' of 'each and every allegation' and moved the court to dissolve the temporary injunction on the grounds that there is no equity in the bill, that complainants have an adequate remedy at law and that the answers previously filed by the respondents 'deny the equity of the bill.'
The case was tried orally before the court and the policy issued to John Rogers was introduced in evidence. This policy provided coverage to John Rogers on a 1955 Ford Tudor Convertible automobile, the motor number being designated. This policy contained the following pertinent provisions.
'1. Coverage A--Bodily Injury Liability: To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use, including loading or unloading, of the automobile.
'Coverage C-1--Basic Medical Payments: To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services, to or for each person who sustains bodily injury, sickness or disease, caused by accident, while in or upon or while entering into or alighting from the automobile provided the automobile is being used by the named insured or his spouse, if a resident of the same household, or with the permission of either.
'Coverage D--Collision or Upset: To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile, but only for the amount of each such loss in excess of the deductible amount, if any, stated in the declaration as applicable hereto.'
The policy of insurance also contained in the insuring agreements, the following definition of insured:
'III. Definition of Insured. (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and, if the named insured is an individual, his spouse if a resident of the same household, and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or such spouse or with the permission of either. The insurance with respect to any person or organization other than the named insured or such spouse does not apply:
'(1) to any person or organization, or to any agent, or employee thereof, operating an automobile sales agency, repair shop, service station, storage garage or public parking place, with respect to any accident arising out of the operation thereof, but this provision does not apply to a resident of the same household as the named insured, to a partnership in which such resident or the named insured is a partner, to any partner, agent or employee of such resident or partnership;
'(2) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.'
One of the conditions of the policy concerns the right of the insured to make an assignment of his interest in the policy and reads as follows:
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