Bankers Fire Marine Ins. Co. v. Draper

LIVINGSTON, Justice. This is the second appeal in this cause. 242 Ala. 601, 7 So.2d 299. As on the first trial, without prejudice-to the plea in abatement, the parties proceeded to an issue on the merits and by agreement the suit was tried on both the plea in abatement and in bar. There was. a verdict and judgment for plaintiff, and. the defendant appeals. Matters in Abatement. On the second trial, the lower court-sustained plaintiff’s demurrers to defendant’s rejoinders, which were substantially the same rejoinders held demurrable by this court on the former appeal. At the earnest insistence of appellant’s, counsel, we have again carefully considered the questions presented and find no. [655] reason for disturbing the former holding. There was no error in sustaining demurrers to the defendant’s rejoinders, and assignments of error 5, 6, 7, 8 and 9 are without merit. Assignment of error 28 is predicated upon the refusal of charge “E”. The charge is based on the theory that plaintiff failed to produce evidence in support of replication No. 4. Replication No. 4 alleges that defendant’s agent offered to pay only $650 in settlement of the claim. The plaintiff’s evidence tended to prove an offer to pay only $650 for damage to the house, and $150 for damage to the furniture, both covered by the policy. The essence of replication No. 4 is defendant’s refusal to pay the claim in accordance with the terms of the policy. The offer to pay only $800 in settlement of the claim is a refusal to pay the claim in accordance with the terms of the policy as much so as an offer to pay only $650. The variance is wholly immaterial, and it is not probable that the error, if' any, affected the substantial rights of the defendant. Supreme Court Rule 45, Code 1940, Tit. 7, Appendix. The foregoing evidence was also sufficient upon which to predicate the refusal of the general charge as to replication No. ■4, and which refusal is made the basis of assignment of error 49. The same evidence justified the refusal of general charge numbered 7, assignment of error No. 34. Assignments numbered 38 and 39 relate to refusal of charges 14 and 15, which are as follows: “14. If you believe the evidence in this case the plaintiff is not entitled to a verdict on replication No. 9 in abatement. “15. If you believe the evidence in this case the plaintiff is not entitled to a verdict on replication No. 11 in abatement. The plaintiff testified: “Mr. Penney, when I go to see him he tells me to go over to Huntsville to see Mr. Hart. Mr. Hart would settle with me, he had already been down to investigate it, and I wouldn’t have anything to do but go over and see him.” And further, “Mr. Penney told me Mr. Hart would settle with me, pay me. He said go over to see Mr. Hart, he has an office over the Tennessee Valley Bank and that he will settle with me when you get over there, he has already been down and investigated the matter.” That Mr. Penney was the general agent, with authority to bind the insurance company seems to be unquestioned. See Aetna Ins. Co. v. Kennedy, 161 Ala. 600, 50 So. 73, 135 Am.St.Rep. 160; Yorkshire Ins. Co. v. Gazis, 219 Ala. 96, 121 So. 84. The above-quoted evidence justified the refusal of charges 14 and 15. Assignment of error 36. Defendant’s refused charge numbered 10 is misleading, and was properly refused.