Southern Home Ins. Co. of the Carolinas v. Boatwright

• Decision Date: 07 November 1935
• Docket Number: 7 Div. 305
• Citation: Southern Home Ins. Co. of the Carolinas v. Boatwright, 231 Ala. 198, 164 So. 102 (Ala. 1935)
• Court: Alabama Supreme Court
• Parties: SOUTHERN HOME INS. CO. OF THE CAROLINAS v. BOATWRIGHT.

164 So. 102

231 Ala. 198

SOUTHERN HOME INS. CO. OF THE CAROLINAS v. BOATWRIGHT.

7 Div. 305

Supreme Court of Alabama

November 7, 1935

Appeal from Circuit Court, St. Clair County; J.H. Disque, Jr. Judge.

Action on a policy of fire insurance by M.F. Boatwright against the Southern Home Insurance Company of the Carolinas. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Carl G Moebes and Coleman, Spain, Stewart & Davies, all of Birmingham, for appellant.

James A. Embry, of Ashville, Frank B. Embry, of Pell City, and Victor H. Smith, of Birmingham, for appellee.

BROWN Justice.

This is an action of assumpsit by the insured to recover the value of a dwelling house and its contents, consisting of household goods and personal effects, alleged to have been destroyed by fire on August 22, 1933, and insured against such destruction by a policy of insurance issued by the defendant on the 15th day of August, 1933.

The defendant filed two pleas in abatement, alleging that the plaintiff had failed of compliance with the requirements of the policy to furnish proof of loss. The elements of the proof of loss required, by the stipulations pleaded, are that within sixty days after the fire the insured "shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and all others in the property; the cash value of each item thereof, and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since issuing (issuance) of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire."

The pleas, in addition to the stipulations for furnishing proof of loss, also set out the requirement of the policy, that "if fire occurs the insured shall give immediate notice of any loss thereby in writing to this company," etc.

The pleas in abatement are not grounded on the plaintiff's failure of compliance with the last-quoted stipulation as to notice, but solely upon his failure to furnish proof of loss.

The averments of plaintiff's replication 2, that "the day following said fire, the plaintiff made a verbal statement or report of said fire and of the destruction of or damage to the property insured under said policy" to defendant's agent, McCain, might be a sufficient predicate to warrant the plaintiff in claiming a waiver of written notice under the last-quoted stipulation; but it is wholly insufficient to warrant the plaintiff in claiming a waiver of the provision for proof of loss. It does not appear that the alleged "verbal statement or report" was intended by the plaintiff, or accepted by the said McCain as such proof of loss; nor do the facts alleged in the pleas justify any such conclusion.

The same is true as to replication 3, in respect to the alleged dealing between the plaintiff and defendant's agent McCain. These averments are addressed to the question of notice--not proof of loss.

In so far as replication 3 rests a waiver of proof of loss on the acts of the defendant's "adjuster," construing its averments most strongly against the pleader, it does not appear from its averments whether said adjuster was defendant's general agent or general adjuster, or was a special adjuster, and if a special agent or adjuster, that he was acting within the line and scope of his authority. The replication avers that defendant "sent its adjuster to said Ashville, and that said adjuster interviewed the plaintiff"; not that he was sent to interview the plaintiff and adjust his loss. Non constat he was sent to Ashville on other business in no way connected with said loss. (Italics supplied.)

The replication (numbered 16) held sufficient in American Ins. Co. v. Millican, 228 Ala. 357, 153 So. 454, to quote from the opinion of the Court of Appeals, there under review, averred "that defendant waived the breach asserted in plea 9, in that it sent Norris [its adjuster] to see plaintiff about adjusting the loss; that Norris did see plaintiff; that plaintiff gave him whatever information he requested; and at that time Norris knew of the mortgage to Mollie Turney and recognized and treated the policy as binding on defendant and agreed with plaintiff to settle the loss." 153 So. 448, 450. (Italics supplied.)

The averment that the defendant sent its adjuster Norris to see plaintiff about adjusting the loss, regardless of whether he was a general or special adjuster, shows that he was acting within the line and scope of his agency in dealing with Millican in respect to Millican's loss. Not so here; the replication merely avers that "defendant sent its adjuster to said Ashville." (Italics supplied.)

In Georgia Home Insurance Co. v. Allen, 128 Ala. 451, 460, 30 So. 537, 539, the utterance in Liverpool & London & Globe Insurance Co. v. Tillis, 110 Ala. 201, 17 So. 672, was quoted with approval: " 'Where, after a fire, an insurance company sends a person to the scene of the fire, and authorizes him to act as an adjuster in the particular case, with all the authority in reference thereto that is given to general adjusters, the insured, in dealing with such person, in the absence of notice to the contrary, has the right to presume he has authority to act for and bind the company as to all matters within the scope of his duties as the adjuster in the particular case and such special adjuster, by denying all liability under the policy, may waive the provision of the policy, requiring the assured to produce formal proofs of loss, as effectually as could the general adjuster of the company.' "

Said replication 3 does not in terms aver that said adjuster in doing the things set up therein as a waiver was acting within the line and scope of his authority; nor do the facts pleaded show that he was so acting. Moreover, said replication does not aver that said adjuster either denied liability, or that he agreed to pay said loss. Our judgment, therefore, is that the court erred in overruling the defendant's demurrers to plaintiff's replications 2 and 3. National Life & Accident Ins. Co. v. Moore, 216 Ala. 554, 114 So. 45; London & Lancashire Ins. Co., Limited v. McWilliams, 215 Ala. 481, 110 So. 909; Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 96 So. 250; Yorkshire Ins. Co., Limited v. Gazis, 215 Ala. 564, 112 So. 154.

There is an absence of evidence showing that the plaintiff made preliminary proof of loss; therefore, charge 12, given at plaintiff's request, was clearly abstract, but the giving of an abstract charge is not reversible error unless it is manifest from the record that the jury has been misled. Goldsmith & Davis v. McCafferty, 101 Ala. 663, 15 So. 244; Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642. Inasmuch as the judgment of the circuit court must be reversed for the errors heretofore pointed out, we deem it unnecessary to determine whether or not the giving of said charge should work a reversal of the judgment.

Charge 13, given for plaintiff, relates to the issue presented by the plaintiff's replication to the pleas in abatement, and inasmuch as the pleadings, in part, must be recast, we deem it unprofitable to treat the question of the soundness of the charge as applied to the issues as now framed.

By agreement of the parties entered of record, the issues presented by the defendant's pleas in abatement, and the pleas in bar were tried at the same time and before the same jury, the agreement saving the defendant's right to insist on said pleas in abatement, and no question is raised here in respect to this course of procedure.

One of the defenses asserted by the defendant's special pleas is that the property insured was set fire to and burned through the design or procurement of the plaintiff with intent to defraud the defendant.

While the evidence going to sustain this defense is purely circumstantial, every circumstance in respect to the destruction of the property points to incendiarism. American Ins. Co. of Newark, N.J. v. Fuller, 224 Ala. 387, 140 So. 555.

The evidence is without dispute that plaintiff and his then wife Mrs. Ila Boatwright were living in the house in irreconcilable discord; that though he lived in one end of the house and she in the other, he had not spoken to her for months past, and would not allow two of their children, the boys, one seven and the other twelve years of age, to associate or come in contact with their mother; that he had in effect ordered her to leave and go back to her parents; that plaintiff had moved most of his personal effects from...