Tedder v. Home Ins. Co.

• Decision Date: 19 March 1925
• Docket Number: 6 Div. 977
• Citation: 103 So. 674,212 Ala. 624
• Parties: TEDDER v. HOME INS. CO.
• Court: Alabama Supreme Court

103 So. 674

212 Ala. 624

TEDDER v. HOME INS. CO.

6 Div. 977

Supreme Court of Alabama

March 19, 1925

Rehearing Denied April 16, 1925

Appeal from Circuit Court, Winston County; Ernest Lacy, Judge.

Action on a fire insurance policy for loss of a stock of merchandise by fire, by G.B. Tedder against the Home Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Where replication set up waiver of breaches of fire policy by insurer, which was denied by general issue and not supported by evidence, general affirmative charge for defendant held not error.

The policy is of the standard form, and contains the usual "iron safe clause" and warranties, and also the usual requirement as to making a sworn written report of the loss and statement of the facts.

The nonwaiver agreement referred to in the opinion is as follows:

"Haleyville Ala., August 31, 1921.

"It is hereby mutually stipulated and agreed by and between G.B. Tedder, party of the first part, and the insurance company whose names are signed hereto, party of the second part, that any action taken, request made, or any information now or hereafter received, by said party of the second part, in or while investigating and ascertaining the cause of the fire, the amount of loss or damage, or other matters relative to the claim of the said party of the first part, for property alleged to have been lost or damaged by fire on the 22/23 day of August, 1921, shall not in any respect or particular change, waive, invalidate, or forfeit any of the terms, conditions, or requirements of the policy of the party of the second part held by the party of the first part, or any of the rights whatever of an party hereto.

"The intent of this agreement is to save and preserve all the rights of the parties, and permit an investigation of the claim and the determination of the amount of the loss or damage in order that the party of the first part may not be unnecessarily delayed in his business, and that the amount of his claim may be ascertained and determined without regard to the liability of the party of the second part, and without prejudice to any rights or defenses which said party of the second part may have."

The letter received by plaintiff from defendant, dated November 22, 1921, is as follows:

"Your letter of 10th instant, addressed to the Home Insurance Company, New York, has been referred to us for attention. In reply, beg to say under nonwaiver agreement signed by you and adjuster for the Home Insurance Company on August 31, 1921, our adjuster, Mr. Cotter, endeavored to agree with you on estimate of the value of your stock at the time of the fire, which nonwaiver agreement provided that by such investigation company's rights or defenses would not in any manner be waived. The figures arrived at were your own figures, but you refused to agree thereto. Therefore inasmuch as the company have absolute defense by reason of violation of iron safe clause, there is nothing further for the company to do but deny all liability for loss under their policy No. 97. There may have been other breaches of the policy than above mentioned, and, by specifying the above any additional breaches which have occurred are not waived, but merely the foregoing is all of the information we have at present received. Under the above information, the company at the present time insists that the conditions of the policy have been broken, and deny any liability for loss thereunder."

Plaintiff's testimony as to his dealings with defendant's adjuster is as follows:

"Mr. Cotter, the adjuster, came to see me about a week or 10 days after the fire. I think it was about the 31st of August when Mr. Cotter came up there. I expect the first conversation, first and last took up about 30 minutes on that visit. My books were burned up in that fire. Everything in that McKaskey register was consumed. My policy was in the bank. I could not say, but Mr. Cotter and I didn't talk all together more than 30 minutes that day. At the time I told Mr. Cotter my books had been burned up. He wanted to know if I had an iron, fireproof safe. And I told him I had a safe that was bought for a fireproof safe, and he wanted to know if it protected the books and papers, and I told him it didn't, that it was at Foster's drug store, and we walked down there and looked at it, and went also and examined the building, and then back to the bank. He says 'I can't go any further with the adjustment at present; you write to the companies you bought goods from and get duplicate invoices of all the goods you bought.' He did not ask me to sign a nonwaiver agreement at that time. It was after we had gone through with the first conversation. It was just a continuous conversation; I was just with him about a half an hour. He did not say I would have to sign it, after we completed our examination, and later he asked me was I willing to sign that, and I told him I didn't know anything about law, and I told him if it was anything to prohibit me from drawing the insurance I did not want to sign it, and he turned to Mr. Walker, the banker, and says, 'It is not, is it, Mr. Walker?' and he says, 'No,' and he says, 'It is merely an agreement of how we well settle,' and he read it over hurriedly, and I told him I didn't know exactly what a nonwaiver agreement was, and I didn't read it. I did not have the opportunity to read it before I signed it. Of course I could have held back and read it, but he told me what it was and proved it by Mr. Walker. At the time the agreement was handed me to sign, they did not say I couldn't read it. I signed it." Witness continued:

"In that conversation that day, which lasted about 30 minutes, Mr. Cotter did not do anything else that day and did not have any other dealing with me before he went away from there. He told me to write and get my invoices. At the time he first came to see me, we went over to the store and then went to the bank. I met him at the bank. We had some conversation at the bank, and I went to the store, and went back to the bank. It is 75 yards from the store to the bank. Mr. Cotter first asked me about my books at the bank, and I told him they were burned up. Mr. Walker was present part of the time. I could not say he was all the time; he was working in the bank. I told him they were in the McKaskey register and were burned up in the fire. I told him I would take him and show him one of the registers, and I told him I would show him the register that was burned. It was in Foster's drug store. I went down there and showed him my register in which my books and records had been burned up. After we examined the safe, we went across the street to the building that got burned up. We just stood there and talked about the nature of the fire. I showed him about where the McKaskey was in the building and went back to the bank. A few minutes elapsed from the time we first met at the bank and went to the Foster drug store and looked at the register and went to the scene of the fire and went back to the bank. I told you how long I was with him. That did not take over 10 minutes. We got back to the bank and talked something like 20 minutes, maybe not that much or a little over. The nonwaiver agreement was the last thing talked about. ***

"The first thing we entered into, he said that he had no starting point to pay me my insurance, that the company would treat me right. I suppose he meant I had no invoices or nothing to show I had ever been in business. He says, 'Write to these companies that you bought goods from, and get as near complete invoices from them as you can from February 1st.' That was the date of my previous inventory. I think I told him how much that inventory was. He and Mr. Walker--he told me he had gone through with my bank account and found out about what I deposited and what I checked out, and he told me--says, 'You write to these companies and get these invoices and write me, and I will be back,' and he says, 'The company will treat you right.' I couldn't say that was all he said; I suppose there was more said. It is hard to recollect all that was said. What he said about the nonwaiver agreement was the last part of it. He filled out the nonwaiver agreement and asked me, was I willing to sign it, read it over to me, and asked me was I willing to sign it, and I says, 'I never had a case in court in my life, I don't know anything about law. If it is anything to prohibit me drawing my insurance I am not willing to sign it,' and he says, 'It is not,' and turned to Mr. Walker and says, 'Mr. Walker, it is nothing to prohibit him from drawing his insurance, is it?' and he says, 'No,' and he stated, 'It is nothing more than an agreement between us here, our settling this business satisfactorily between us; the company wants to do the right

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