Springfield Fire & Marine Insurance v. DeJarnett , 111 Ala. 248 ( 1895 )

COLEMAN, J.

The action is to recover damages for the loss of a house destroyed by fire. The complaint, as originally framed, consisted of two counts, counting on a policy of insurance. The complaint was amended by adding four additional counts. The third count was also on a policy of insurance. The fourth count claimed that the house was insured under a verbal agreement. The fifth count averred an agreement to issue a policy of insurance, by extending a policy (989), so as to cover the building, and a breach of the agreement. The sixth count is not very clear. As we construe it, the cause of action is based upon an agreement, by which a po'icy already held by the plaintiff (No. 989) was to be extended so as to cover the building in question, and this -was to be effected “by attaching a slip of paper” to that effect to it, instead of issuing a new policy. The breach assigned in this count was the refusal and failure to deliver said policy shotuing the insurance of said frame building ,as aforesaid. The breach averred in this count does not consist in the failure to extend policy 989 so as to cover the frame building, but in the failure to deliver the policy showing the insurance of said frame building. The demurrers to the complaint, and to several of the counts, though in different ways, raise but two questions. The first is, that the cause of action contained in the added counts was a departure from the original cause of action ; and, second, that the cause of action laid in the 4th, 5th and 6th counts came within the operation of the statute of frauds, in that the agreement counted on was verbal, and the same was not to be performed within a year.

We are of the opinion that a demurrer is not the proper mode to reach a count added by way of amendment' to an original complaint, which count sets up a cause of action different from that alleged in the original complaint, unless the cause of action in the new count is such that it cannot be joined with that of the original complaint. An amendment relates back to the time of the original complaint, and a demurrer to the complaint tests the sufficiency of the complaint as a whole, or, if to a count, the sufficiency of the particular count. If the demurrer cannot be sustained on one or the other of these grounds, it must be overruled. If there is no misjoinder of causes of action, and each count containing a good cause of action, the demurrer cannot be sustained. A motion to strike the amendment, is the proper remedy, and, if this method is not adopted, the defendant will be held to have waived the right. — Turner v. Roundtree, 30 Ala. 706. There was no motion to strike, but the bill of exceptions states that the defendant objected to the allowance of the amendment. The question cannot be said to have been raised with technical accuracy, but it is one of importance, and we will consider it upon its merits.

The only limitation upon amendments, under our statute, is that there must not be an entire change of either parties plaintiff or defendant, nor an entire new cause of action, nor will an amendment be allowed which will authorizé a recovery upon a cause of action accruing subsequently to the institution of the suit, nor the adding of a cause of action barred by the statute of limitations at the time of the amendment, nor the addition of a count which will cause a misjoinder of causes of action in the same complaint. With these limitations, the right óf amendment cannot be denied. — Mobile Life Ins. Co. v. Randall, 74 A a. 170; Beavers v. Hardie & Co., 59 Ala. 570; Davis v. Motion, 57 Ala. 168; Johnson v. Martin, 54 Ala. 271; Steed v. McIntyre, 68 Ala. 407; Mohr v. Lemle, 69 Ala. 180; Doe v. Richardson, 76 Ala. 329; Jemison v. Governor, 47 Ala. 390; Rapier v. Gulf City, 69 Ala. 476. Exactly what it takes to constitute a new or different cause of action, that may not be added to an original complaint under the statute of amendments, has not been very clearly defined, and different constructions have prevailed in different States. In the case of Connecticut Fire Ins. Co. v. Kinne, 77 Mich. 231, s. c. 18 Am. St. Rep. 398, it was held that a complaint upon a written contract of insurance could not be amended by adding a count for a breach of a verbal agreement to deliver a policy of insurance, — a case very much in point, if the statute of amendments of that State is similar to ours. To the same effect is the case of Hill v. London Assur. Corp., 12 N. Y. Supplement 86. Others might be cited. We have always held that the statute of amendments was intended to secure a speedy-trial upon the merits, without extra cost, and should be liberally construed. Our decisions have made use of the expression that the amendment should be allowed unless the cause of action was entirely new. — Ala. authorities supra. It has been held that a declaration in trover could be 'amended by adding a count in case. — 3 Brick. Dig. 31, § 63; Elmore v. Simon, 67 Ala. 526. In the case of Schuessler v. Wilson, 56 Ala. 516, the court allowed an amendment which under some circumstances might have been held a new cause of action from that declared in the original complaint. In the case of Rapier v. Gulf City Paper Co. 69 Ala., supra, one of the tests applied was whether the relief sought under the amended bill was the same as that prayed for in the original bill. In the case of Semple v. Glenn, 91 Ala. 245, the original action was upon an express contract, and the amend d counts were upon the common counts. This court held that the trial court did not err in excluding the common counts, upon the express grounds that there was “nothing in the record to authorize the presumption that the amendment was not intended to introduce new causes of action, but that a comparison showed that the new counts represented separate and distinct causes of action.” To the same effect and for the same reason, was the case of Mahan v. Smitherman, 71 Ala. 563. Nothing is more common in our practice than the addition of the common counts by way of amendment to an original complaint. We are therefore of opinion, when a cause exists which entitles a party to compensation, and its refusal is a breach of an agreement, the party entitled to recover may declare by original complaint in different counts, or by original and amended complaint in different counts, upon the agreement, as being in writing and verbal; and also upon an agreement, verbal and written, that defendant agreed to make a contract of indemnity, and for compensation, followed by appropriate breaches, each count showing that the damage or right to compensation to which the plaintiff is entitled arose from one and the same cause, to-wit, in the case at bar, the loss of the house by fire, and that such a complaint does not contain entirely new and different causes of action. Whether suit be upon the policy or by bill in chancery to enforce specific performanee of an agreement to issue a policy, after the loss by fire, the judgment in the one case and the decree in the other, if full relief is sought, will be the same, — that is, compensation or payment in damages resulting from the fire. We considered these questions, but not in this connection, in the case of Commercial Fire Ins. Co.v. Morris, 105 Ala. 498.

So far as the demurrer to the several counts added to the original complaint raised the question of the statute of frauds, that question was fully disposed of in the case of Ins. Co. v. Morris, 105 Ala. 498, supra. It is insisted in argument, that the statute of frauds was pleaded in defense, and the evidence sustained the plea, and that the defendant was entitled to judgment on this plea.- This contention grows out of a misapprehension of one of the principles, at least, upon which it is held that the statute of frauds has no application to policies of insurance, and agreements to insure, like those averred in the complaint, and which there was some evidence in the case to support. The statute of frauds declares null and void “every agreement which by its terms is not to be performed within one year from the making thereof.” Although a policy or a verbal agreement of insurance may cover a period of three years, its performance may be required one hour after its execution or it had been agreed upon. There is no provision in the policy or •agreement by which the party entitled to payment for the loss of the property insured is to be postponed for three years. The statute applies to contracts which “by its terms are not so be performed within a year,” and not to contracts which by its terms may require performance within less time.

What has been said suffices to show that the court did not err in refusing to give charges Nos. 2 and 4, requested by the defendant. If the general charge had been requested as to the sixth count, a different question would have been presented, on account of the phraseology of this count and the breach therein averred, but as the charge included the 5th as well as the 6th count, it was properly refused:

There was no evidence to support the first four counts of the complaint, which counted upon a policy of insurance issued, or upon a verbal contract of insurance. The fifth count shows that plaintiff held a policy of insuranee, .No. 989, upon a dwelling, situated upon a lot adjoining the lot upon -which the building burned was situated. This count further averred that the defendant agreed for an additional premium which was then paid defendant’s agent, to extend policy No. 989, so as to cover the additional building, by attaching a slip of paper thereto to that effect,.and that plaintiff left his policy 989 with d'efendant’s agent at his request for that purpose. The breach averred is, the refusal and failure to issue the policy with the extension, and the destruction of the house by fire. In' this count the building which was to be insured, and which was burned, is described as “a two-roomed, one story frame house,” already insured in policy 989. This count did not aver that the building destroyed by fire had been insured, but an agreement by which policy 989 was to be extended so as to cover it. The court, therefore, did not err in refusing the first and third charges requested by the defendant. The charges are not clearly drawn, and were calculated to mislead the jury, as there was some evidence tending to show that a description of the property was left where the agent of lire defendant received it. We are not advised as to the character of this description. It may have given the exact distance between the two houses, and yet have described them as adjoining each other. Error must be .-.ffirmatively shown.

The relevant and material facts in support of and against the issue upon the fifth count were in direct conflict. The correct conclusion must be determined by the jury. We are constrained to the conclusion that the court erred in the admission of evidence for the plaintiff and to which objections were seasonably made. There was much of mere hearsay admitted, but, according to the abstract, no exceptions were reserved to this character of evidence, and we will not consider it. An illustration of this kind is found in the testimony of witnesses, testifying as to what Henry Going said his father said (the father being the agent of the defendant), he not being present, and so far as we are informed, never heard of such statements. The errrors to which we refer consist in the admission of irrelevant testimony, and acts and statements of Henry Going, who was a mere clerk in the office of the agent of the company, calculated to impress the jury with the conviction that such acts and statements were binding upon the defendant. The scope and authority of an agent may always be proven, to show whether there is a liability of his principal, but the scope and authority of the clerk of an agent, employed by the agent for his own ^convenience, and without authority of the principal of the agent, express or implied, is incompetent to fasten a liability upon the principal, who has no knowledge of such acts or statements, or employment. If the rule were otherwise, the clerk of an agent could bind the original principal in matters in which the agent himself had no authority. The principle is well settled in Mechem on Agency, § 197, and quoted with approval by this court in Waldman v. North British &c. Ins. Co., 91 Ala. 170. In several respects the cases are similar. The evidence was conclusive that James A. Going was the agent of the defendant, and that Henry Going was employed by him to do the clerical work of the office. This was admitted by the defendant. The plaintiff himself testified that he knew James A. Going was the agent of the defendant, and that he knew that Henry Going was only a clerk in his office. ■ The introduction of other policies which had been extended, or issued originally by Henry Going, by signing the name of James A. Going, agent, did not show that Henry Going had authority to make such contracts, unless there was evidence to show that the defendant had knowledge or notice of such contracts, and ratified them. If this was shown, the contracts would bind the defendant, upon the principle that the defendant had made Henry Going its own agent to execute contracts for it in that way. The same is true as to receipts offered in evidence which had no connection with this case. All this evidence would be ■pertinent if there was a question as to the liability of James A. Going, and he was endeavoring to repudiate the authority of his clerk, but the liability here is sought to be fastened upon the defendant, who is the principal of James A. Going. One receipt seems especially irrelevant, the one of date October 29, 1892, for five dollars, on policy No. 568. This receipt was issued at a different time,on a different policy,and to a different person, was made out and signed by James A. Going, in person. That he was the agent of the defendant, had full commission to issue policies, collect premiums, and bind the defendant, was admitted, and never denied. For the '-purposes of the case at bar, it was admitted that Henry Going had full authority to collect premiums, give receipts for money, and for this purpose to sign the name of James A. Going. It was never admitted, and, so far as appears from the abstract, there was no legal evidence to,j show, that Henry Going had authority to bind the company b.y an insurance contract made by him, in the name of the company, or in the name of James A. Going, agent. To authorize a recovery, the plaintiff must prove a contract with the defendant, as averred in the complaint, made by its agent, and this cannot be shown merely by transactions with and declarations of the clerk of the agent. We must not be understood as intimating that there is not legal evidence in the record that would justify the jury in finding the existence of such a contract. We are of opinion there was, if credited by the jury; but some of the facts indispensable to such finding were controverted, and we prefer not to discuss them,, as there must be another trial of the case. The same rule applies to companies and corporations which govern persons, and that is, that whoever undertakes to enforce a contract or claims the benefit of one, whether secured by one having authority or one acting without authority , is bound by the methods and conditions by which it was secured. If secured without authority, or by the use of improper methods, the party for' whose benefit it was made, upon notice of these fact's, may repudiate it; but if he delays unnecessarily, and holds to its advantages, he must abide its burdens. There was no error in admitting in evidence policy 989, nor in admitting in evidence the three receipt's of November 20th, 1893. The plaintiff contends that policy 989 was to be extended to 'cover the frame building. If the jury should be satisfied of the truth of this contention, the policy would show a contract complete in all its terms, just as if the agree- - ment had been to renew a policy. As for the receipt for five dollars, the plaintiff contends that three dollars of the amount was paid as the premium for the extension, and two dollars was to be credited upon the balance he still owed on the policy, no part of the original premium having been paid. These facts are denied by the defendant. The plaintiff contends that the policy was sent to the office by direction of James A. Going. This is also' denied by the defendant. The truth must be ascertained by the jury.

Reversed and remanded.