Union Marine Ins. Co. v. Charlie's Transfer Co.

• Decision Date: 16 April 1914
• Docket Number: 645
• Citation: 65 So. 78,186 Ala. 443
• Court: Alabama Supreme Court
• Parties: UNION MARINE INS. CO. v. CHARLIE'S TRANSFER CO.

65 So. 78

186 Ala. 443

UNION MARINE INS. CO. v. CHARLIE'S TRANSFER CO.

No. 645

Supreme Court of Alabama

April 16, 1914

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action by the Charlie's Transfer Company against the Union Marine Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Counts 5 and 6 allege respectively the insurance of the automobile truck which was destroyed by fire, and that the policy contained an agreement that, in the event of disagreement as to the amount of loss or damage, the same should be ascertained by two competent and disinterested appraisers, to be selected one each by the insurer and insured, and, on their failure to agree, that the two chosen should select a competent and disinterested umpire. The counts then set up the disagreement as to loss, the selection of the appraisers the choice of an umpire, the award, and the notice of the award to defendant, and its failure to perform the same. The other counts were on the insurance policy in code form. Following is charge 5, refused to defendant: "I charge you, gentlemen of the jury, if you believe the evidence in this case, the measure of plaintiff's recovery, if it is entitled to recover at all, is the reasonable cost of repairing the automobile truck mentioned in the complaint or, if necessary, replacing the parts damaged or destroyed including the charges incidental thereto."

John T Glover, of Birmingham, for appellant.

Sterling A. Wood and Fred S.

Ferguson, both of Birmingham, for appellee.

SAYRE J.

Plaintiff joined counts on a policy of insurance with others, counting on an award made in the arbitration of a loss suffered under the same policy. Defendant objected to the presence of the counts on the policy, saying that the cause of action there counted upon had been merged in the award shown by the other counts. The doctrine of merger in such cases cannot be doubted; but it does not follow that the policy counts should have been stricken on motion or demurrer. Each count must stand or fall upon the merits of its own averments. There may be a misjoinder; but an objection on that ground goes to the complaint as a whole. There was in this case no objection to the complaint as a whole, nor was there any ground of objection. Under the statute of this state all actions on contracts may be joined, and even actions ex delicto may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject-matter. Code, §§ 5328, 5329. So defendant might have stood upon the award, if it had been so disposed, or it might have pleaded inconsistent pleas. Ferdon v. Dickens, 161 Ala. 181, 49 So. 888. But defendant had no right to limit the controversy at its threshold to the award. It might take inconsistent attitudes in pleading, as being uncertain of the result of the evidence, but it could not expect either court or jury, when it came to the pinch of deciding the question of fact, to hold in one breath that there was and there was not a valid award. All this may seem too plain for argument.

Pleas 3, 4, and 5, as pleaded to the counts on the award, at first alleged plaintiff's breach of stipulations of the policy relating to notice and proof of loss. As amended, they averred that the appraisement and award were had under an agreement that the appraisement for the purpose of ascertaining and fixing the amount of the loss should not be held for a waiver of any other right of either party. The pleas as amended anticipated a replication of waiver by averring a nonwaiver clause. But their last state was no better than their first. There was no averment of waiver on the record, nor could there have been any question of breach or waiver under these counts, for the reason that all such questions were merged in the award alleged (Callier v. Watley, 120 Ala. 38, 23 So. 796), as the court was justified in holding on the demurrer.

There was nothing in the objection to the introduction of the policy in evidence that it varied from the policy declared upon. The declaration of some of the counts, in the code form, was for the destruction or damage by fire of plaintiff's automobile truck, which defendant had insured against loss or damage by fire, "and other perils in the policy of insurance, mentioned." The policy insured, not only against fire, but against pilferage and the perils of transportation, and was thus not exclusively a fire policy. It was a policy of fire insurance, none the less, and the code form was properly used in declaring upon it. The policy was properly...