Manchester Fire Assurance Co. v. Feibelman , 118 Ala. 308 ( 1897 )

HARALSON, J.

1. After this case was reversed on a former appeal, defendant filed additional pleas, numbered 193, 26, 27, 28 and 29. Demurrers Avere interposed to these pleas, which Avere sustained. There Avas no error in such rulings. The first four of these pleas, as admitted by counsel for appellant, raise substantially the same questions, — that the plaintiff had never procured a license under the laws of Alabama, to carry on the business in AAdiich he was engaged, down to and including the time that the property insured was injured or destined by fire. We held in our former opinion, and fail to see that we were not correct in so holding, that whether the plaintiff had a license to retail or not, had nothing to do Avith the insurance. — Feibelman v. Manchester Fire Ins. Co., 108 Ala. 180, 197.

The original complaint in the cause Avas filed Avithin tAvelve months after the fire occurred. The 3d count, filed by leaAre of the court, more than tAvelve months thereafter, is an amendment of the original complaint, and related hack to the date of its filing. There Avas no error, therefore, in sustaining the demurrer to the 29 th plea. — Evans v. Richardson, 76 Ala. 329.

The 8th plea seems not to haAre been passed on in the former appeal. The demurrer to it was properly sustained. It is not an anSAver, as it professes to he, to the entire complaint. In the policy, separate Araluations are made of the fixtures, wines, liquors, etc., and the pool tables, and the complaint so describes them. The insurance as to each was divisible.- — W. A. Co. v. Stoddard, 88 Ala. 606; Feibelman v. Manchester, &c., 108 Ala. 180, 197; Merrill v. Ag. Ins. Co., 73 N. Y. 42; Schuster v. The Dutchess County Ins. Co., 102 N. Y. 260.

2. The case was tried on issue joined on the pleas to which demurrers were overruled,- — the 1st, 2d, 5th, 10th, 11th, 12th, 15th, 16th, 17th, and 18th, — and on issue joined on the replications to the 13th plea. The 1st and 2d of these pleas are the general issue. The 5th sets up, that the plaintiff executed a mortgage on three pool tables, a part of the property insured, which rendered the policy void under the conditions thereof, as to said pool tables: We may pay no further attention, however, to this plea, since there was no effort on the part of the defendant to sustain it. The same thing is true of the 17th plea. The 10th, 11th, 12th, 15th, 16th set up that the plaintiff did not own the policy upon which the suit was brought, and that she was not, at the time of the alleged loss or damage by fire, the owner of the vinous, sprituous and malt liquors, claimed in the complaint to have been destroyed.

The 13th plea set up, that the plaintiff never made proof of loss as required by the policy under which she sues. There were two replications filed to this plea, the one on the 24th, and the other on the 25th May, 1893, the latter being an amended replication. The first was defective, and was afterwards withdrawn. The amended replication set up, “that on, to-wit, the 21st of January, 1892, after the fire occurred, the defendant’s adjuster, one A. S. Weatherbee, visited the place where the fire occurred, and examined the plaintiff’s books of account, and had plaintiff’s agent make an affidavit of the amount of loss and ascertained the loss to be the sum sued for, and offered to pay plaintiff’s agent a sum less than the amount claimed under the policy.”

The replications afterwards filed to this plea were: “3. That said defendant by and through its adjuster , Weatherbee, refused and repudiated the payment of said policy on, to-wit, January 21, 1892, and stated to plaintiff’s agent, that (the) town authorities had informed him that the plaintiff’s said agent would be arrested for setting fire to, and burning the property insured in the policy sued on. 4. That subsequent to the fire, to-wit, oh the 21st day of January, 1892, the defendant’s adjustre, one Weatherbee, visited the place where the fire occur red, examined the plaintiff’s books of account, and ascertained (the) loss; had plaintiff’s agent to swear to the itemized statement of account of loss, and plaintiff’s agent asked him, Weatherbee, whether or not he would discount the amount ascertained, to-wit, the sum sued for, or take the 60 days under the policy, and he then told (the) agent to call at a late hour in the day, and he would give him a check for the amount, and when plaintiff’s agent, as per understanding, called on him, he then refused to pay anything on said policy. 5. That said Weatherbee, subsequently offered to pay plainufrs agent a sum less than the amount claimed undm* the policy, and this subsequent to the loss by fire and within sixty days from the date of the fire. 6. That defendant denied its liability under said policy, subsequent to the fire and within sixty days from the date of the fire. 7. That subsequent to the loss by fire, the defendant’s adjuster, one Witherbee, visited the place where the fire occurred, examined the plaintiff’s boots of accounts and ascertained the loss, had the plaintiff’s agent to swear to the itemized statement of account, and told plaintiff’s agent to return that evening, and he wouhl let him know whether he would give a draft for the amount ascertained to be due under the policy or take the usual sixty days, and plaintiff’s agent called that evening, to-wit, January 21st, 1892, and the said Weatherbee told him that the company would not pay anything; that the town authorities Avould have him arrested for arson.”

The defendant filed a rejoinder to the first of these two replications, Avhich, on motion of plaintiff, AAras stricken out. Subsequently, the defendant filed several rejoinders to these replications, to which plaintiff demurred, and the demurrers Avere sustained. The ruling on these demurrers is not questioned in the assignment of errors.

It Avill be seen, that the real issues are the pleas of the general issue, on Avhich issue Avas taken; on joinder of issue to the 10th, 11th, 12th and 16th pleas, and the replications of the plaintiff to the 13th plea, on AAdiich issue was also taken.

3. If the objection to the introduction to the power of attorney by H. A. to M. J. Feibelman, was technicallv well taken, in that the power was limited to the conduct of the business by the latter for the former, as his general agent, and did not extend to making a sale of. the property, and that its execution was not duly proved, thé action of the court in overruling it was error without injury. The testimony tended without conflict to show, that there ivas a bill of sale of the property covered by the policy to plaintiff, signed by H. A. Feibelman, the insured, and that he, being in Birmingham at the time, knew that M. J. Feibelman had transferred the policy in his name to plaintiff. This was a ratification of the transfer. Besides, this transfer was made on the 1st of January, 1892, and on the 5th of January, thereafter, the insurance company gave its consent to the transfer by indorsement regularly and duly entered on the policy.

4. The policy contained a list of the property insured, by separate valuations, — “$G00 on his (assured’s) fixtures, side-board, glasses, beer cooler, screen, cash register, show cases and other fixtures; $200 on his pool tables, being $100 each; $700 on his stock of wines, brandy, beer, tobacco and cigars, and such other merchandise, not more hazardous, as is usual in this trade, all contained” in the building described. The witness, M. J. Feibelman, was asked to tell what fixtures were in the store, and he was allowed to answer, “two pool tables and some chairs.” The defendant objected to 'the statement that there were some chairs, because the chairs were not fixtures, and moved to exclude what the witness said about the chairs, which objection and motion the court overruled. The same witness afterwards estimated the fixtures, all together, as worth about $900. Furniture and movables are not fixtures. — May on Ins., §420. Moreover, the policy described particularly the movable personal property and furniture that was insured, beyond which it specially provided, the company should not be responsible in case of loss, and it did not, therefore, include any other. The objection as to the chairs as fixtures was well taken, and the motion to exclude should have been granted.

5. The replication of the plaintiff to defendant’s 13th plea, as has been seen, set up, that there had been an ascertainment of the loss by and between the defendant’s adjuster and plaintiff’s agent, M. J. Feibelman, from an examination of plaintiff’s book of accounts, and that the adjuster afterwards informed the agent, that he would not pay anything, as the town authorities would have him arrested for arson; that subsequently, after the loss by fire, and within sixty days therefrom, he offered to pay a sum less than the amount claimed under the policy, and that the defendant took issue on such replication, after demurrer overruled, without assignment of error for the overruling of the same. When plaintiff offered to prove by the witness, Feibelman, that Weatherbee, after the interview last referred to, and after Feibelman had been put in jail, came to him and “offered $175, and stop all criminal proceeedings,” and Feibelman refused, the defendant objected and the court overruled the objection and allowed the witness to so state. This was but an offer of proof to establish the truth of the replication, and it was admissible for the purpose. If there was error in the ruling, it went back to the ruling on the demurrer, for issue having been joined on the replication, if there was error in overruling the demurrer to it, the plaintiff was entitled to introduce evidence tending to establish its truth. — 108 Ala. 198, 200. On the former appeal, the evidence on this point, and the conditions were different from what now appear.

6. There was no error in allowing the question to the witness, M. J. Feibelman: “After the sale was made from H. A. Feibelman to E. Feibelman, on the 1st of January, 1892, was there or not other goods purchased and put into the stock of goods?” He answered that there were, and stated what goods had been so purchased. The objection is insisted on, for the reason that defendant could not be held responsible for new goods bought after the issuance of the policy and before its transfer to plaintiff. The goods were insured, as the evidence shows, in a saloon which'was being operated by the assured at the time, and the policy, of course, covered new goods of the kind insured, bought and brought in, not exceeding in value the amount insured. It was, as' is termed, a shifting policy. — 7 Am. & Eng. Encyc. of Law, 1008.

7. For the purpose of passing on several assignments of error to be considered, it may be stated, that there was evidence tending to show that the alleged sale to the plaintiff was simulated. She lived in Mississippi, and as M. J. Feibelman testified, had never been in Birmingham. He acted as her agent, according to his account, in the purchase of the salooon from his brother, H. A. Feibelman, who owned it. It is not made to appear, that she ever knew of this transaction between H. A. and M. J. Feibelman. The bill of sale was executed to her by H. A. Feibelman on the 1st of January, 1892, on the recited consideration of $1,714.02, for the fixtures, furniture and stock of goods. M. J. Feibelman testified that the trade was closed up, with only a cash payment of $175 to $225, and an indebtedness of $500 due by H. A. to E. Feibelman, but how the balance was paid, he could not tell, and that he could not tell when H. A. became indebted to E. Feibelman. It was further shown, that he made an affidavit before D. C. Buckslmv, a notary public, as to the value of the goods destroyed, and instead of signing his own name to the affidavit, he signed E. Feibelman’s name thereto. The evidence further tended to show that he set fire to the saloon; that he and H. A. Feibelman by themselves, on the 31st of December, 1891, took an inventory of the stock; that the policy was transferred to the plaintiff on the 5th of January, the fire occurring on the 10th of January, 1892, and that there was but little of the stock on hand at the time. The evidence also further tended to show that a new barrel of whiskey had just been purchased and brought into the store; that on the night of the fire it contained but little, if any whiskey, and that the floor, fixtures and goods, bore an appearance, to indicate that a blaze of fire had passed over them, scorching some and destroying others of them.

The 13th, 21st and 22d assignments of error, all of a class, are without merit. The questions if answered in the affirmative, were irrelevant to the issue of the bona fieles of the sale of the goods to the plaintiff and her ownership of them.

8. The 14th assignment of error was well taken. On cross-examination of this witness, he stated that he had bought a mirror and screen from the Rothschilds in Cincinnati at $400, and that they had been paid for. Defendant further asked him, “Isn’t it a fact that the Rothschilds retained title until they Avére paid for, and that they had not been paid for?” The court sustained a general objection to this question. In this there was error. The defendant was entitled to an answer.

9. The bank book of plaintiff showing deposits in the South Side Savings Bank in 1893 was introduced in evidence by plaintiff for the purpose of showing, that she had means of purchasing the stock of goods, and her ownership of them. It was relevant for this purpose, and we cannot presume without more than is disclosed, that it was improperly admitted by the court.

3,0. Assignments 3.7, 18, 19, 20, 25 and 28, are well taken. The objections to the several questions were general — they Avere not patently illegal. On the other hand, the answers, if as defendant desired, bore on the issue of the bona fieles of the sale of the goods to plaintiff and Avould have tended to sIioav that M. J. Feibelman or his brother, and not the plaintiff was the owner of the goods and policy.

11. The evidence for plaintiff tended to show, that the barrels in the saloon were so badly injured by fire, that all the whiskey in them ran out and Avas destroyed; and that on the part of defendant, that the barrels Avere not thus injured but were empty before the fire occurred. This proof was submitted on each side, touching the amount and value of liquor destroyed by the fire. Defendant asked the Avitness, Kilpatrick, who went, as is shown, as soon as he could get into the house, what examination he made of the barrels. He stated that he examined them, and Avas satisfied that there was nothing in them. To the direct question propounded, he stated: “I examined until I was satisfied there was no no whiskey — couldn’t find any.” The plaintiff made a, general objection to the Avhole of this answer. We find no fault with the answer. It tended to shoAV how complete his examination was, and that there was no Avhiskey in the barrels. It was error to exclude the answer.

12. The object of the inquiry made the basis of assignment 27, was to show that M. J. Feibelman, and not the plaintiff, was the owner of the policy. The matter being testified about by the witness, Hardeman, was as to what M. J. Feibelman swore, when he made the alleged affidavit of loss before the notary public, Buckshaw. The answer ivas admissible for the purpose intended, and should not have been excluded. For the same reason, the question, the'basis of assignment 28, should have been allowed to be answered; but the other question, the basis of the 29th assignment, was properly disallowed. It called for the uncommunicated thoughts of the witness.

13. The court should not have given the general 'charge for the plaintiff. The evidence was in such conflict, as rendered it improper to do so.

11. There was no error in that part of the court’s general charge, in which it instructed the jury: “If the property or any part of it was so damaged by fire as to render it useless for the purposes for which it had beeen used, then that is a destruction within the meaning of the law.” If rendered useless for the purposes for which the property was used, the plaintiff’s right to recover insurance for what was so insured was complete. If what remained of the property so injured, was of any value, the insurer was entitled to it.

15. The 4th charge asked by defendant was properly refused. It is abstract. It was not admitted that the cash register was worth $125. The proof was, that it was worth about $100 or $125.

The next succeeding charge, numbered 2, was a proper one, and should have been given. If there was no evidence upon which the jury could satisfactorily base a finding, as to the value of the property mentioned, then it would follow, that they could not find for the plaintiff as to such property.

There was error in refusing charge 8. The policy did not cover any chairs, and yet the court had let in proof that there were some chairs in the saloon, at the time of the fire; and this instruction was, therefore, proper.

The 3d count alleged the transfer of the policy.by H. A. Feibelman to plaintiff on the 1st January, 1892, the date being stated under a videlicet. The proof showed its transfer on the 5th of that month. Charges 6 and 12 requested by defendant contained instructions for a verdict for defendant, unless the proof showed such transfer on the 1st, as averred. The proof of the 5th of the month as the date of the transfer, did not constitute a variance, and the charges were properly refused. 1 Gr. Ev., §§60, 61.

Charges 5, 27, 28 and 29 requested by defendant, were asked as applicable to the whole complaint, and not confined to the first count, which alleged an adjustment. Those charges, if good as to the first count, were certainly not good as to the other count, which was in Code form on the policy itself.

It is unnecessary to review the remaining very numerous charges requested by defendant. It is sufficient to say of them, that they are either abstract, calculated to confuse and mislead the jury, or are plainly illegal.

Reversed and remanded.