Tubb v. Liverpool & L. & G. Ins. Co.

• Decision Date: 24 April 1895
• Citation: 17 So. 615,106 Ala. 651
• Parties: TUBB v. LIVERPOOL & LONDON & GLOBE INS. CO.
• Court: Alabama Supreme Court

17 So. 615

106 Ala. 651

TUBB v. LIVERPOOL & LONDON & GLOBE INS. CO.

Supreme Court of Alabama

April 24, 1895

Appeal from circuit court, Walker county; James J. Banks, Judge.

Action by G. T. Tubb against the Liverpool & London & Globe Insurance Company. From a judgment for defendant, plaintiff appeals. Reversed.

This action was brought on July 29, 1893, by the appellant, G. T Tubb, against the appellee, the Liverpool & London & Globe Insurance Company, to recover "the value of a stock of general merchandise, such as is usually kept for sale in country stores, which the defendant, on the 8th day of April 1893, insured against losses or injury by fire, and other perils, in a policy of insurance mentioned, for the term of one year, which stock of general merchandise was wholly destroyed by fire on the 28th day of April, 1893." The defendant pleaded several pleas, among which were the following: "Third. For further answer to the said complaint, the defendant says that in and by the terms of said policy, it is provided in substance and made a condition thereof that the entire policy shall be void, if there be kept, used or allowed on the premises described therein benzine, and defendant avers that there was a breach of said condition, for that the plaintiff did keep, use or allow benzine on said premises during the existence of said policy and defendant avers that by the terms of the said policy it is also provided in substance and made a condition thereof that the policy should be null and void, if any kerosene oil, whether crude or refined, except refined kerosene for lights, or gunpowder were stored, used, kept or allowed on the premises, unless with the permission of the defendant indorsed on the policy, and defendant avers that by an indorsement on the policy the plaintiff was allowed to keep in his store two barrels of kerosene oil of not less than U.S. standard of 110 degrees, and fifty pounds of gunpowder." "Fourth. For further answer to said complaint, the defendant says that in and by the terms of said policy it is provided, in substance, and made a condition thereof, that the entire policy be void if there be kept, used or allowed on the premises described therein fireworks, and defendant avers that there was a breach of said condition for that the plaintiff did keep, use or allow fireworks on said premises during the existence of said policy; and defendant avers that by the terms of said policy it is also provided in substance and made a condition thereof that the policy should be null and void if any kerosene oil, whether crude or refined, except refined kerosene oil for lights, or gunpowder were stored, used, kept or allowed on the premises, unless with the permission of the defendant, indorsed on the policy, and the defendant avers that by an indorsement on the policy the plaintiff was allowed to keep in his store two barrels of kerosene oil of not less than U.S. standard of 110 degrees, and fifty pounds of gunpowder." "Tenth. For further answer to said complaint, the defendant says that in and by said policy it is provided in substance that the entire policy shall be void in case of any false swearing by the insured touching any matter relating to said insurance or the subject thereof, whether before or after a loss, and defendant avers that after the loss of the said stock of merchandise, the plaintiff falsely swore that the cash value of the goods which was the subject of the insurance was three thousand, six hundred and fifty dollars ($3,650), and also falsely swore that the value of said stock of merchandise was three thousand, nine hundred and twenty-eight and 64/100 dollars ($3,928.64), on the 23d day of January, 1893, and also falsely swore that he had never taken but one inventory of said stock of merchandise." To the tenth plea, the plaintiff demurred on the grounds, (1) that it fails to allege that the false swearing charged therein was made with the intent to defraud, or was intentionally false; (2) that it fails to allege that the matters about which the swearing was done, were material. To the third plea, the defendant replied as follows: (1) That at the time the fire originated, which destroyed the property insured, there was no benzine kept, used or allowed on the premises. (2) That in the policy of insurance sued on, the defendant insured the plaintiff's stock of general merchandise, "such as is usually kept for sale in country stores"; and that benzine was a part of the plaintiff's stock of general merchandise, and was usually kept for sale in country stores. (3) That the provision mentioned in said plea regarding benzine was printed, and that by a provision of said contract of insurance sued on, which provision was partly printed and partly written, the defendant insured plaintiff's stock of general merchandise, "such as is usually kept for sale in country stores"; and that benzine was a part of his stock of general merchandise, and was usually kept in a stock of general merchandise such as is usually kept for sale in country stores. To the fourth plea the plaintiff filed the following replications: (1) That at the time the fire originated which destroyed the property insured, there were no fireworks used, allowed or kept in the premises. (2) That in the contract of insurance sued on, the defendant insured the plaintiff's stock of merchandise, "such as is usually kept for sale in country stores," and plaintiff avers that said fireworks were a part of his stock of general merchandise, and were generally kept in a stock of general merchandise, "such as is usually kept for sale in country stores." (3) That the provision mentioned in said plea regarding fireworks was printed, and that by a provision of the contract of insurance sued on, which provision was partly printed and partly written, "the defendant insured the plaintiff's stock of general merchandise, and that fireworks were usually kept in a stock of general merchandise, such as is usually kept for sale in country stores." The plaintiff also filed a replication to the third and fourth pleas, in which he averred that the destruction of the property mentioned in the complaint was not caused or affected by benzine or fireworks. The defendant demurred to the several replications of the plaintiff to the third and fourth pleas on the following grounds: (1) That the said replications are no answer to the pleas, because it is not denied therein that during the existence of the policy sued on benzine or fireworks were kept, used or allowed on the premises, without the consent of the defendants, andin violation of the provisions of the policy. (2) That it was alleged in said pleas that by the terms of the policy of insurance sued on, it was made a condition that if benzine or fireworks were kept, used or allowed on the premises during the existence of the policy, without the consent of the defendant, then the policy should be void; and it is not denied in the said replications that the plaintiff did keep, use or allow benzine and fireworks on the premises without the consent of the defendants, and in violation of said condition of the policy. (3) That whether benzine or fireworks were kept on the premises or not, at the time of the fire, is wholly immaterial, and no answer to the pleas. (4) That whether the destruction of the property insured was caused or not, or in any manner affected, by benzine or fireworks, is immaterial, because, by the terms of the policy which was made a condition, the policy would be void if such articles were used or allowed on the premises without the consent of the defendant. Plaintiff's demurrer to the 10th plea was overruled. The defendant's demurrer to plaintiff's replication to the third and fourth pleas were sustained; and the plaintiff declining to plead further, judgment was rendered for the defendant. The plaintiff appeals, and assigns as error the rulings of the trial court upon the pleadings.

Coleman & Bankhead, for appellant.

London & Tillman, for appellee.

HARALSON J.

1. The demurrer to plea number 10 should have been sustained. The plea very carefully avoids the allegation, that the alleged false or untruthful swearing was knowingly or willfully done. The authorities seem to be very uniform to the effect, that the swearing such as is averred this policy required, and such as was made by the insured after the loss in proof of the value of the goods destroyed, in order to work an avoidance or forfeiture of the insurance, must have been knowingly and willfully done with a fraudulent purpose, and that a mere innocent mistake, or misstatement, or overvaluation, do not constitute a defense. 2 May, Ins. § 447; 2 Wood, Ins. § 441; 1 Bid. Ins. § 444; 11 Am. & Eng. Enc.

Law 301; Titus v. Insurance Co., 81 N.Y. 411; Insurance Co. v. Cargett, 42 Mich. 289, 3 N.W. 954; Dogge v. Insurance Co., 49 Wis. 502, 5 N.W. 889; Insurance Co. v. Grehan, 74 Ga. 642...