Ogburn-Griffin Gro. Co. v. Orient Insurance

GARDNER, J. This was a suit upon a fire insurance policy covering a stock of groceries belonging to the Ogburn-Griffm Grocery Company, brought by appellant against appellee. The defendant pleaded the general issue and also several. special pleas setting up the provisions of the policy, whereby it was provided that: “If a building or any part.thereof fall, except as a result of fire, all insurance on such building or its contents shall immediately cease.” These special pleas alleged that the building which contained said stock of goods, or a substantial part of said building, fell, not as a result of fire, but as the result of its own inherent defects, weaknesses, overloading, etc. There was also an attempt to set up, by several special pleas, the breach by the plaintiff of certain conditions of the “iron-safe clause”; but these pleas finally went- out on demurrer. It appears from the record, therefore, that the real issues litigated between the parties on the trial of the cause was that raised by those pleas setting up the avoidance of the policy because the building or a substantial part thereof fell, not as a result of fire, but of its own inherent weakness. The trial resulted in a verdict by the jury in favor of the defendant, and the plaintiff prosecutes this appeal. The assignments of error relate to the action of the court in giving certain written charges requested by the defendant. The first assignment relates to charge numbered 1, given for the defendant. This charge relates to the damages recoverable, and is based upon the hypothesis “if the jury should find for the plaintiff.” The jury, however, returned a verdict for the defendant, and, if there was any error in giving the charge, it was without injury.—Huson Ice & M. Works v. Bland & Chambers, [222] 167 Ala. 391, 52 South. 445; B. R. L. & P. Co. v. Demmins, 3 Ala. App. 359, 57 South. 404; Gordon v. Sullivan, 116 Wis. 543, 93 N. W. 457; 2 Am. Dig. (Dec. Ed.) § 1068, subd. 4. The criticism of counsel in brief,, directed to this charge, only tends to show that the charge had a misleading tendency. If the falling of the building was the result of fire, then, of course, damage done to the goods of the plaintiff by the falling walls and debris would be the result of the fire and within the terms of the policy. —2 May on Insurance, § 412. If the plaintiff apprehended that the charge as given might mislead the jury, or had a misleading tendency, the remedy, was to ask an explanatory charge. It is the general rule recognized by this court that the giving of a charge with misleading tendency is not reversible error.—2 Mayf. Dig. 573; B. R. L. & P. Co. v. Demmins, supra. Charges 2 and 3, given for the defendant; constitute the second and third assignments of error; and, as they are treated by counsel in brief by one argument and as presenting the same question, we will so consider them. These charges are free from error. They simply affirm and follow the plain provisions of the policy. They state the issues raised by the special pleas, and which appears to have been the real litigated question in the case.—Foster v. Home Ins. Co., 143 Fed. 307, 74 C. C. A. 445; Kiesel & Co. v. Sun Insurance Office, 88 Fed. 243, 31 C. C. A. 515. There appear on the record 18 assignments of error, each relating to the action of the court in giving a certain charge at the request of the defendant. The charges are referred to in the assignments by numbers and transcript pages'. The brief of counsel for appellant, however, discusses 26 assignments of error, and as to each assignment (following the first 3 treated above) refers [223] to a charge not referred to in the assignment and, in some instances to charges which do not appear at all in the transcript. An illustration may be cited in the fifth assignment, which refers to charge 9. Brief of counsel states that this assignment refers to charge 7. There is no charge 7 shown in the record as given for defendant. There are also other instances, like that noted. In brief of counsel we also note, as to the fourth assignment, the following:, “The fourth assignment is waived.” This assignment refers to charge 8. When the sixth assignment is reached in argument, counsel state it refers to charge 10, and charge 8 was embraced in the fourth assignment, which ivas expressly waived. A few other such instances are noted, showing a waiver of assignments in one portion of brief and an argument of them in another. The brief was doubtless prepared in much haste and probably under some difficulties, as might appear from the affidavit on file, offered upon application to reinstate the cause after dismissal of appeal for failure to file brief within the required time. So far as counsel are concerned, all this may be entirely excusable, as one might conclude from' the affidavit referred to. Had there appeared, only an occasional such error, a different question would be presented. But such is not the case. Not an assignment of error following the first three is correctly referred to in brief. Rule 10 of this court, as in force at time of submission of this cause (Code 1907, p. 1508), requires that: “The appellant, in order to prepare a case properly for submission when called, shall have filed a brief .of the points relied on, in accordance with, and confined to, the distinct specifications contained in his assignments of error, each ground of error insisted on being separately presented and numbered in proper order. Each point shall be slated in the form of a proposition, un [224] less the assignment of error is itself in that form, and then it Avill be sufficient to copy the assignment.” That there has been a violation of this rule, although doubtless entirely unintentional on the part of counsel, there can be no question. It is equally apparent that such a violation is productive of much confusion to the court, in the study of the record and the preparation of an opinion,-with the consumption of much unnecessary time and consequent delay. The point is strenuously urged upon us by counsel for appellee. We are not at all disposed to a strict construction of such rules, but are rather inclined to construe them liberally in favor of litigants who show substantial compliance with their terms. But we cannot permit them to be ignored or entirely disregarded, however innocently, for they were framed and adopted to facilitate business and be an aid to the court in its prompt and orderly disposition, a result in which the profession and those whom it represents are greatly interested. If the rule is to be enforced at all, and even as construed most liberally, we are of the opinion that in this case we should consider the remaining assignments of error as waived, for the reasons above assigned.—1 Amer. Digest (Dec. Ed.) “Briefs,” §§ 755 to 761, inclusive; Winkler v. Hawkes & Ackley, 126 Iowa, 474, 102 N. W. 418; Kinnon v. L. & N. R. R. Co., 187 Ala. 480, 65 South. 397. It results that the judgment of the court below is affirmed. Affirmed. McClellan, Sayre, and de-Graffenried,' JJ., concur.