Western Assur. Co. v. Hann

Citation78 So. 232,201 Ala. 376
Decision Date20 December 1917
Docket Number6 Div. 511
PartiesWESTERN ASSUR. CO. v. HANN.
CourtSupreme Court of Alabama

Rehearing Denied March 23, 1918

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by Charles Hann against the Western Assurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Sayre J., dissenting.

Suit by appellee against the appellant upon a policy of fire insurance to recover damages for the destruction of his stock of goods insured against loss by said policy contract.

The first count, as amended, sought recovery for the value of the stock of goods consisting of shoes, etc., "which property was destroyed or was damaged by fire which occurred on, to wit, the 12th day of December, 1914." The second count was the same as the first with the exception that it concluded as follows: "Which property was destroyed or was damaged by fire which occurred on, to wit, the 21st day of April, 1915."

Numerous pleas were filed by defendant.

Plea 1 was the general issue.

Plea 2 set up the following provision in the policy:

"If a building, or any part thereof, falls, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease"

--and then alleged that the building in which the property was insured was located did fall prior to the destruction thereof, and that the fall of the building was not the result of the fire. Issue was joined upon this plea.

Plea 3 was in substance the same as plea 2, with the exception that it failed to allege that the falling of the building was not the result of the fire, and demurrer to this plea was sustained.

The fourth plea set up that the policy insured the property "against all direct loss or damage by fire," and that the property was not damaged or destroyed directly by fire, but by the falling of the wall adjoining thereto, and extending above the building which contained the property insured, which said wall fell upon the building, causing the loss; and that the falling of said adjacent wall was the direct and proximate cause of the destruction of the property. Demurrer to this plea was overruled.

Plea 5 set up the same provision of the policy as copied in the second and third pleas, and further alleged that the falling of the building was caused by an adjacent wall falling thereon; but the plea did not allege that the wall did not fall as the result of fire.

This also applies to plea 6, which is substantially the same as plea 5, except that it is more elaborately stated.

Pleas 7, 8, and 9 set up in varying language practically the same defense upon the following facts, briefly stated: Plaintiff in this cause had instituted in the District Court of the United States a suit claiming a recovery of Mrs. Lucy P Hudgins, the owner of the building adjacent to that in which plaintiff's property was located, for the loss and destruction of the property described in the policy of insurance, and that in said suit plaintiff alleged that the property was destroyed by the falling of an adjacent five-story wall, and the falling of said wall was the proximate consequence of the negligence of the owner of said wall, to wit, Mrs. Lucy P. Hudgins; that said suit was prosecuted and a judgment recovered against the said Mrs Hudgins in the sum of $15,163; that by reason of the institution of this suit counting for recovery upon the negligence of Mrs. Hudgins, and the recovery of a judgment in his favor, the plaintiff is precluded by said judgment and recovery, and is estopped to claim that the damage to the property covered by the policy sued on was caused by fire.

The tenth plea set up the provision in the policy which gave to the insurance company the right to be subrogated in certain events as follows "If this company shall claim that the fire was caused by the act or negligence of any person, or corporation, private or municipal, this company shall on payment of the loss, be subrogated to the extent of such payment, to all rights of recovery by the insured, for the loss resulting therefrom and such right shall be assigned to this company by the insured, on receiving said payment."

The plea then alleged the suit against Mrs. Hudgins, and the judgment recovered, and that by reason thereof defendant had been deprived of the right of subrogation, and is therefore relieved of all liability under the policy. The plea did not allege that the judgment had been paid or satisfied in any manner, or that defendant had made any payment in regard to the loss.

Plea 11 set up, in substance, the same facts as were contained in pleas 7, 8, and 9, and concluded by averring that by bringing such suit the plaintiff had elected to proceed against Mrs. Hudgins as the person liable for such loss, and was bound by such election.

Demurrer was sustained to pleas 7, 8, 9, 10, and 11.

Plea 12 set up the following provisions in the policy:

"This company shall not be liable for loss caused, directly or indirectly, by the negligence of the insured, to use all reasonable means to save and preserve the property at and after a fire, or when the property is endangered by fire in neighboring premises."

The plea then averred that on December 12, 1914, a fire occurred in the building adjoining, and there remained standing a five-story brick wall which on April 21, 1915, fell upon the building in which the property insured was located, causing the damage thereto, and that the plaintiff breached the warranty above set out, in that plaintiff did neglect to use all reasonable means to save and preserve the property insured at and after the fire in said neighboring building on December 12, 1914, and that by reason of such breach plaintiff is not entitled to recover.

The action of the court in sustaining demurrer to pleas 13 and 15 is not insisted upon in argument of counsel for appellant.

Plea 14 set up the same provision as contained in plea 12, alleging that plaintiff negligently failed to use any reasonable means to save and preserve the property, in this, that the plaintiff negligently failed to remove said property from said building, which was, as above set out, endangered by said unsupported five-story wall. Issue was taken upon pleas 12 and 14. The cause was tried upon the plea of the general issue and upon the joinder of issue upon the second, fourth, twelfth, and fourteenth special pleas.

The case was submitted to the jury upon the testimony introduced by plaintiff, defendant offering no testimony.

Some of the salient features of the evidence may be briefly outlined as follows: The policy of insurance sued upon insured plaintiff for a period of one year "against all direct loss or damage by fire," to an amount not exceeding $2,000, to the property described therein, consisting of his stock of goods and merchandise, and contained, among other provisions, the following:

"This company shall not be liable for loss caused directly or indirectly by invasion *** or by negligence of the insured to use all reasonable means to save and preserve the property at and after the fire, or when the property is endangered by fire in neighboring premises." "If a building, or any part thereof, fall, except as a result of fire, all insurance by this policy on such building, or its contents, shall immediately cease."

Plaintiff at the time of the fire, was the owner of a retail shoe store in the city of Birmingham on Second avenue between Nineteenth and Twentieth streets, the storehouse occupied by him being a three-story structure and referred to as the Hann Building. Adjacent thereto, and immediately west thereof, was located a five-story brick store, owned by Mrs. Lucy P. Hudgins, formerly occupied by the Steele-Smith Dry Goods Company, and which is referred to as the Steele-Smith Building. On December 12, 1914, there was a fire in the Steele-Smith Building, which resulted in its destruction, and at which time the west wall of said building fell, and the east wall remained standing, the entire interior of the building being destroyed, the roof also. The east wall which remained standing was 140 feet long and 70 feet high, and rose above the building occupied by plaintiff something over two stories. The wall abutted the Hann Building, and there were no openings in said east wall. That in the Steele-Smith Building on the fourth and fifth floors there was 10 or 12 feet of the floor joist left from the front part of the building, and beyond that they were all gone. The Steele-Smith Building was 50 feet wide, and after the fire there were left floor joists extending from the front of the building on the second and third floors to about half the length of the building, connected by columns. The joists rested on these columns, and the other ends were mortised into the east and west wall; that is, that portion of the west wall left standing. On the fourth floor these floor joists extended for a distance of about 30 feet from the front of the building, and on the fifth floor for about 15 feet. After the fire the front and rear walls of the Steele-Smith Building were left standing, and to this front and rear wall the east wall was tied in the natural erection and construction of said building. The east wall was left without any support or protection as a result of the fire on December 12, 1914, and without any shouldering other than its connection with the front and rear walls of the said building, and the floor joists on some of the floors above mentioned. The fire in the Steele-Smith Building destroyed the entire stock of dry goods therein contained, and was a very hot fire; that the fire burned all night, and that all the floorings were burned out; a great deal of water was poured into the building and onto the walls, and that the...

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