Royal Ins. Co. v. Story

• Decision Date: 08 March 1949
• Docket Number: 7 Div. 960.
• Citation: 40 So.2d 719,34 Ala.App. 363
• Parties: ROYAL INS. CO., Limited, v. STORY.
• Court: Alabama Court of Appeals

40 So.2d 719

34 Ala.App. 363

ROYAL INS. CO., Limited, v. STORY.

7 Div. 960.

Alabama Court of Appeals

March 8, 1949

Rehearing Denied March 29, 1949.

F. W. Davies and Davies & Williams, all of Birmingham, for appellant.

Walter J. Merrill and Knox, Jones, Woolf &amp Merrill, all of Anniston, for appellee.

The following charge was refused to defendant.

'A1. If you are reasonably satisfied from all the evidence that plaintiff has wilfully sworn falsely on the trial of this case as to the cause and origin of the fire, the plaintiff is not entitled to recover on the issues in bar of the suit.'

CARR Judge.

The complaint in this cause consists of one count which is predicated on a policy of insurance covering loss by fire of an automobile.

The defendant first interposed a plea in abatement which alleges in effect that the insured did not file a sworn statement of the loss as required by the provisions of the policy.

In reply to this plea the insured filed a number of replications. Some of the replications approach the reply on the theory of waiver and others estoppel. In effect, it is here contended that the waiver or estoppel arose by virtue of the conduct of agents of the insurer, in that they gave assurance to the insured that the loss would be reported to the company and the claim in due course would be paid.

Demurrers were overruled to each of these replications.

The defendant then pleaded the general issue and in short by consent.

The defenses thus presented as indicated by the evidence were: General issue; willful burning of the property by the insured; that at the time of the loss the automobile was under bailment lease to another; that the insured at the time of the loss was not the sole owner of the car; that the insured was guilty of fraud and false swearing on the trial of the cause.

The trial of the issues thus formulated resulted in a verdict in favor of the plaintiff on the plea in abatement and also a verdict in his favor for damages for the loss of the property.

The action of the court in overruling the demurrers to the replications is presented for review.

It is insisted that the replications do not allege that the agents had any notice or knowledge that the insured had not filed any proof of loss as required by the terms of the policy.

Each replication contains the averment that the report was made to the agent on the same day the loss occurred. It is thus made to appear that the time for filing the proof of loss had not expired, and under such circumstances it was immaterial whether the agent had knowledge of a failure in this respect. Home Ins. Co. v. Jones, 231 Ala. 484, 165 So. 211.

It is urged also that the alleged acts of waiver or estoppel are shown to have occurred on Sunday. The demurrers do not raise this question. Title 7, Sec. 236, Code 1940; Southern Indemnity Association v. Hoffman, 16 Ala.App. 274, 77 So. 424.

Replications I and J contain an added averment as follows:

'That on, to-wit, January 21, 1947 plaintiff's attorneys, acting for and on behalf of the plaintiff, wrote a letter to the defendant, a copy of which is attached hereto, marked Exhibit 'A', and is made a part hereof as fully as if set out herein; that the original of said letter was deposited in the mail with postage prepaid addressed to the defendant at the address shown on the policy sued on; that a carbon copy of the letter was likewise deposited in the mail with postage prepaid addressed to the agent of the defendant who issued the policy sued on; that neither the plaintiff nor his attorneys received any answer to, or acknowledgment of, said letter; that on, to wit: February 7, 1947 plaintiff's attorneys, acting for and on behalf of the plaintiff, wrote another letter to the defendant, a copy of which letter is hereto attached, marked Exhibit 'B', and is made a part hereof as fully as if set out herein; that said letter was deposited in the mail, with postage prepaid, addressed to the defendant at the address shown on the policy sued on in this cause; that neither the plaintiff nor his attorneys received any answer to, or acknowledgment of, said letter; that thereafter on, to-wit, February 18, 1947, the plaintiff filed his suit in this cause.'

It is unquestionably true that a waiver or estoppel cannot be inferred from mere silence. We do not construe these replications to mean that this attempted. This inclusion did not make the replications defective.

The replications seem to be a substantial adoption of many that have been sustained by our appellate courts. Home Ins. Co. v. Jones, 231 Ala. 484, 165 So. 211; American Ins. Co. v. Millican, 26 Ala.App. 31, 153 So. 448, certiorari denied 228 Ala. 357, 153 So. 454; United States Fire Ins. Co. v. Smith, 231 Ala. 169, 164 So. 70, 103 A.L.R. 1468.

It may have been in conformity with better pleading to have stated the nature and character of the agents' duties. However, the proof without conflict supplied this omission, and clearly the appellant was not in any manner injured by a failure in this respect. Rules of Practice in Supreme Court, rule 45, Code 1940, Tit. 7 Appendix. Smith et al. v. Tripp, 246 Ala. 421, 20 So.2d 870; State Realty Co. v. Ligon, 218 Ala. 541, 119 So. 672; Life & Casualty Ins. Co. of Tenn. v. Peacock, 220 Ala. 104, 124 So. 229; Day & Sachs v. Travelers' Ins. Co., 223 Ala. 558, 137 So. 409.

There is no merit in the position that the affirmative charge was due the appellant on the plea in abatement. The evidence brings the cause under the controlling influence of many decisions that have been announced throughout the history of judicial proceedings in this and other states. Some of these are: American Ins. Co. v. Millican, supra; Home Ins. Co. v. Jones, supra; United States Fire Ins. Co. v. Smith, supra; Southern Home Ins. Co. of the Carolinas v. Boatwright, 234 Ala. 668, 176 So. 460; Southern States Fire Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63; American Ins. Co. v. Porter, 25 Ala.App. 250, 144 So. 129; London Assur. v. Hendon, 30 Ala.App. 175, 2 So.2d 917; Ray v. Fidelity-Phenix Fire Ins. Co., 187 Ala. 91, 65 So. 536.

We see no occasion to decide whether or not transactions relating to a waiver or estoppel made on Sunday are void and of no effect. In the instant case it is doubtful if this question is properly presented for review. In any event, there are proven facts which tend to establish waiver and estoppel which occurred on week days as well as Sunday.

It is urged that the court fell into error by allowing proof of the contents of a written instrument. The objections pose the point that the 'paper is the best evidence.' If there was error here, it was made harmless by the introduction of the instrument at a subsequent time in the proceedings. Page v. Haas Bros. Packing Co., 9 Ala.App. 445, 63 So. 691.

The objection to a question comes too late if it is delayed until after the answer is given. Kelley v. State, 32 Ala.App. 408, 26 So.2d 633. This rule must be applied to the matter upon which assignment of error number 39 is predicated.

It appears that after the car burned the chief of police observed the appellee and another person at a filling station in Heflin, Alabama. In this connection appellant's counsel asked the officer: 'When you got there what did you do?' The court sustained objections to the question and indicated that he considered it too general. It is clearly evident that the circumstances of this incident were related in detail by the witness and this included all that the officer did. Borden & Co. v. Vinegar Bend I umber Co., 7 Ala.App. 335, 62 So. 245; Capital Motor Lines et al. v. Loring, 238 Ala. 260, 189 So. 897.

We encounter difficulty in treating some of the assignments of error, because of inaccuracies in appellant's brief. In several instances arguments are directed to an assignment when apparently another was intended.

Assignment of error 33, which is argued in brief under heading 'Assignment of Error 32,' is predicated on the action of the trial judge in sustaining appellee's objections to a question which was subsequently answered without objections. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757.

Assignment of error 26, which is argued in brief under heading 'Assignment of Error 25', relates to the action of the court in refusing to admit in evidence the printed part of an exhibit. At a later time in the proceeding appellee's counsel withdrew the objections, and the written instrument in its entirety was allowed in evidence.

Assignments of error 17, 18, 19, and 20 are predicated on the action of the court in refusing to ...