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

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 South. 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. [447] Pleas 3, 4, and 5, as pleaded to the counts on the award, at first alleged plaintiffs 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 South. 796), as the court was justified in holding on the demurer. 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 admitted in evidence. Moore ivas defendant’s local agent to solicit and write insurance at Birmingham, and had written the policy in suit. After the loss plaintiff had consulted with Moore, giving notice and proof of loss through him-that is, plaintiff had notified him of the loss, and had prepared his proof of loss on a blank form furnished [448] by Moore, and had trusted it to Moore to be forwarded to defendant. It was shown without dispute that defendant had received notice or proof of loss in some shape, and had acted upon it by sending an adjuster, without objection that there had been no notice of loss, nor that it was not “immediate,” as the policy required, nor that there had been no sufficient proof of loss. It had, however, by its pleas put these things in issue. That the questions to plaintiff as a witness, eliciting his statement of these facts, were proper is hardly open to debate. Plaintiff Avas then allowed to testify generally that the contents of the document delivered by him to Moore for transmission had reference to the loss of his automobile truck. Objection wás made to this testimony on the ground that the document itself was the best evidence of its contents. The correctness of the court’s ruling in admitting this general statement of the nature of the document might be vindicated, but it is not necessary. By entering into the arbitration within the time allowed for proof of loss according to the stipulation of the policy, as unquestionably it did, defendant waived all question as to the fact and sufficiency of the proof of loss. So- that, even though the ruling should be held for error, it was harmless. Appellant assigns for error the admission in evidence of the award made by the umpire and one of the appraisers. The signature of the other appraiser was not appended, and on this omission appellant bases its assignment of error, citing McCrary v. Harrison, 36 Ala. 577. The agreement, made in pursuance of a stipulation of the policy, provided that the award of the appraisers and umpire, or any two of them, should determine the amount of the loss. It was made very clearly to appear, and this without contradiction, that the second appraiser had not failed to sign the award for lack, of [449] opportunity to consider and signify Ms concurrence or dissent’, but because, haying fully and finally considered the matter with his fellows, he had signified Ms dissent and absolute refusal to sign; whereas, tbe rilling in McCrary v. Harrison, was put upon tbe ground that an award, signed by only two arbitrators under tbe statute in tbe absence of tbe third, and without notice to him, tbe arbitrators baying previously reached an agreement expressly made, subject, however, to future alterations upon anticipated suggestions of errors by tbe parties, was prima facie void. We find no error in this ruling. It is enough to say of appellant’s assignment of error, based on tbe court’s refusal to- allow tbe witness McPherson to state bis judgment as to whether notes plaintiff bad given for tbe purchase price of truck retained title in the vendor, that at tbe time of tbe ruling-complained of no issue bad been made concerning- plaintiff’s sole and unconditional ownership of tbe truck. After tbe evidence bad closed, appellant asked leave to file a plea presenting tbe defense that tbe policy was void under its terms because plaintiff bad not tbe sole and unconditional ownership of tbe truck during tbe life of tbe policy. Tbe court refused to allow tbe plea to be filed, and appellant excepted. The matter rested within tbe discretion of tbe court, and will not be revised in tbe absence of a clear showing of abuse.—Craig v. Pierson Lumber Co., 179 Ala. 535, 60 South. 838. We have cases that look strongly to tbe proposition that plaintiff bad title Avithin tbe meaning of tbe policy without regard to payments made, even though tbe purchase-money notes reserved title in tbe vendor.—Commercial Union Assurance Co. v. Ryalls, 169 Ala. 517, 53 South. 754; Loventhal v. Home Ins. Co., 112 Ala. 108, 20 South. 419, 33 L. R. A. 258, 57 Am. St. Rep. 17. But aside from that, enough appeared in tbe evidence to [450] show that, most likely, there was no merit in the proposed plea. Incidentally and while the parties were introducing evidence pro and con on the subject of the price plaintiff .had paid for the truck as attesting its value, it had appeared by the testimony, which carried no suggestion of uncandor, and which there was no reason to suppose appellant might hope to controvert, that, with accounts settled between plaintiff and the vendor, there ivas no outstanding real claim against the truck. Charge 5, requested by defendant, was properly refused. It ignored the issue raised by counts 5 and 6. The several charges requested, to the general effect that plaintiff could not recover under any aspect of the evidence, were well refused. ■ We find no error in the record. Probably plaintiff was not entitled to recover upon the policy because there had been an award; but appellant refrained from presenting this solution of the case because it would have involved a concession that plaintiff was entitled to recover on the award. The jury’s assessment of damages was fairly well supported by the evidence, and we have found no good reason for disturbing the result. Affirmed. Anderson, C. J., and McClellan and de Graffenried, JJ., concur.