Feibelman v. Manchester Fire Assurance Co.

108 Ala. 180

• Court: Supreme Court of Alabama
• Decided: November 15, 1895
• Status: Published

Opinion

HEAD, J.

The return to the certiorari brings up the original complaint in a very different shape from that in which it was presented to us by the original record, when the case was formerly submitted. It now conforms, substantially, to the Code form, ón a policy of fire insurance (Form 13j Code of 1886 p. 792). If it be true that this form of complaint implies an action, in the name of the assured, mentioned in the policy, when the assignee of the policy sues, the complaint ought to allege the assignment to the plaintiff, made in accordance with the authority to assign, contained in the policy. — Fire Insurance Co. v. Felrath, 77 Ala. 194. Hence, taking this to be the true construction of the form, if there was nothing else in the record to produce a different result, the plaintiff would fail in the action, by reason of the variance, shown when it developed in proof that the suit was in the name of an assignee of the original assured. In the present case, however, the defendant pleaded that the plaiutiff was not, at the time of the commencement of the suit, the rightful owner of the policy of insurance named in the complaint; and, upon this plea, the plaintiff joined issue, by general replication, which is, in effect, to allege that she was, at the time of the commencement of thp suit, the rightful owner of the policy. Thus, the matter of ownership was, by pleading, put in issue ■ between the parties, and no objection was made by defendant to the manner and form in which the issue was made up.

The refusal of the court to strike the 6th plea, because not verified, did not prejudice the plaintiff, for the reason that another plea covering the same defense, properly verified, was interposed and issue joined thereon.

The 10th and 15th pleas did not require verification, and the motion to strike them was properly over-ruled.

The defendant’s 19th plea alleged, among other things stated in the condition, that it was .stipulated in a certain conditio!!, set forth in the policy, that in casé óf. any fraud or false swearing by insured, touching any matter relating to said insurance, or the subject thereof, whether before or after a loss under the policy, the insurance shouldjjbe void; and the^ plea alleges that, the plaintiff the 21st day of January, 1892, before a notary tafy public, after said loss is alleged to have occurred, state under oath, among other things, that plaintiff had renewed her license, (meaning thereby a license tore-tail vinous, spirituous and malt liquors, as required by the laws of the State of Alabama) for the year 1892, having done so on the 12th day of January, 1892; that said statement so made, was rendered to the defendant with the view, and for the purpose, of collecting the insurance covered by the policy sued on, and that the same was false. A demurrer, (which the court overruled) in a sufficient way, challenges the materiality of the alleged false statement. We are unable to see what the plaintiff’s license, or the want of it, had to do with the insurance. There is no averment in the complaint or plea, which establishes any relation between the license and the insurance, or that the former had any bearing upon the latter. The plaintiff (if her case was perfect in other material respects) was entitled to collect the insurance money, whether she had taken out the' license or not, so far as anything brought to view, in the pleadings under consideration, shows. The false statement, therefore, constituted no defense, and the demurrer ought to have been sustained. did, on

The 20th plea sets out the same condition, and alleges that on January 21, 1892, after the loss occurred, the plaintiff stated, under oath, before a notary (which statement was made to defendant for the same purpose, as alleged in plea 19) that the ‘liquors, &c., also fixtures therein contained, (meaning thereby the stock of liquors and fixtures contained in the storehouse No. 1920 2nd Ave., the said stock of liquors and fixtures being, the same which were insured by the policy of insurance sued on) ‘belonged to me personally,” and that, ‘no one else, directly or indirectly, had any interest in the same whatever;” which statement, was false, in this, that the South Side Savings Bank did have an interest, either directly or indirectly, in one or more of the pool tables, mentioned in the policy. The complaint describes the “fixtures” and pool tables, as separate articles, insured in separate amounts. The plaintiff, it is observed, did not affirm, in the statement alleged to have been false, that no one else had any interest in the pool tables. The plea, therefore, does not really show that the plaintiff’s statement was false. Issue upon its averments would consequently, have been wholly immaterial. The demurrer ought to have been sustained.

The demurrer of defendant to the original replication to the 13th plea, is not set out in the record. As the replication was demurrable for its failure to allege the facts constituting the waiver of the proofs of loss, we will presume in favor of the ruling of the court below, that the demurrer assigned that ground. There was no ruling on the demurrer to the amended replication; hence, we will presume issue was joined thereon, the special rejoinder having been stricken from the file.

The exceptions reserved upon the admissibility of evidence as to whether Witherbee was defendant’s adjuster, in the matter of adjusting the less, were all obviated by the subsequent admission of defendant’s counsel, on the trial, that he was such adjuster.

There was no error in permitting plaintiff’s witness, Hardeman, to testify, on cross-examination, as to what whisky, in barrels, there was on hand the next morning after the fire, at the place where the fire occurred. The plaintiff, on rebutting examination of Hardeman, put the following to him in the form of a question : "Your recollection about the location of the show case is about the same as about the other matters to which you have testified?” Defendant objected, on the ground that plaintiff was trying to impeach her own witness. We do not see wherein the question tended to impeach the witness. Although her witness, it was competent for plaintiff to show that he was mistaken in reference to any matter unfavorable to her, to which he had testified, and to elicit from the witness, if she could, the extent or character of his recollection. We think the court erred in sustaining the objection on the ground stated.

In view of the issue joined on the 19th plea, which the court held good on demurrer, it was not proper for the plaintiff to object to proof by the defendant that plaintiff did not take out license on January 12th, 1892, that being an issue tendered by the plea. The error on the part of the court, goes back to its ruling on the demurrer.

Upon well settled principles, it was not error to exclude evidence of an offer, on the part of defendant’s adjuster, to compromise the plaintiff’s demand. What -vvas said at the jail was, therefore, properly excluded. The warrant of arrest and indictment, for the purpose for which they were offered, were also properly excluded. It does not appear that plaintiff was injured by the refusal of the court below to allow the questions as to Wither-bee’s and Hardeman’s visit to the jail. It was not disputed that Witherbee went there to seeM. J. Feibelman, the plaintiff’s general agent and manager., who was therein imprisoned, and there was no offer to prove what occurred with Hardeman, if anything, if he went there. Indeed, it was not disputed, as elsewhere shown, that Hardeman did go to the j ail.

M. J. Feibelman was examined as a witness for plaintiff, which subjected him to impeachment by defendant by proof of his character. But, character is a fact which is proved by another fact — general reputation. It cannot be shown by evidence ol particular facts. 3 Am. & Eng. Enc. Law 114 ; Birmingham U. Ry. Co. v. Hale, 90 Ala. 8 ; Holland v. Barnes, 53 Ala. 83. It was, therefore, incompetent for defendant to prove that two or three fires occurred in the saloon, in 1891, while said Feibel-man was in the management and control of it. The court erred in permitting such proof.

When defendant’s witness, Buckshaw, was first upon the stand,he testified that, being a notary public, he was called into the office of Thomas Hardeman, defendant’s local agent, and there were present, Mr. Wither-bee, Mr. M. J. Feibelman and Mr. Hardeman. Mr. Feibelman made an affidavit and signed the name of E. Feibelman (the plaintiff), and there was no question raised to the name. A paper “purporting to be a copy of the paper that was referred to” (as the bill of exception recites) was then handed to the witness, and offered in evidence, against .the objection and exception of the plaintiff. ‘ ‘It was shown to the court that the original was lost, before the copy was admitted, and that after diligent search it could not be found.” The centents of the paper do not appear in the record, but we would presume, to support the ruling of the court, that the matter was relevant. There was no proof, however, that the paper was, in fact, a substantial copy of the original. The objection, for illegality and incompetency, was, therefore, well taken, and the court erred in overruling it. We are persuaded the paper is the same which the same witness, at a latter stage of the trial, when called to the stand a second time, identified as a true copy of a lost paper, and which was admitted in evidence and set in the bill of exceptions ; but it does not affirmatively so appear, and we cannot so hold. There was no error in admitting the last named paper. It tended to establish the allegations of the 19th plea. The error, as we said before, goes back to the ruling on the demurrer to the plea. We do not say the paper was not admissable for any other purpose. It was shown to have been a true copy of the original which had been lost and could not be found.

It • was not competent nor material for plaintiff to prove by M. J. Feibelman, as supposed, that he did not offer to Witherbee to surrender the policy, if he would drop proceedings against him, unless there had been evidence, on the other side, that he had made such an offer. The ground upon which the objection to the question was sustained, however, was improper. The question did not seek, in any way, to impeach Wither-bee, and no such predicate, as supposed, was necessary. A predicate, (such as was in mind, in this ruling) to “contradict” a witness, as the objection puts it, is not required.

A policeman was permitted to testify, against the objection and exception of the plaintiff, after stating that he remained at the place of the fire all of the night on which it occurred, that “a fire without combustible material could hoc burn as this one did.” Another witness, Rollo, a city fireman, had, just before, testified for defendant, that the house appeared to have burned all over; that it is not usual to see fire all over the building, and that, in this instance, it seemed to have come from some combustible matter thrown over the walls and furniture. The testimony of the policeman, was, therefore, evidently intended, and did tend, to produce, ih the mind of the jury, the inference that some highly combustible material had been applied, to facilitate the destruction of the building. There is no evidence in the record and none was proposed to be introduced, tending to connect the plaintiff, in any way, with the burning of the property. She resided in another State, and thé property was in sole charge and custody of her agent, M. J. Feibelman. If the property was fraudulently destroyed all the criminating evidence, on that subject, tends to show it was committed by M. J. Feibelman, without any proof of knowledge thereof, or participation therein, by the plaintiff. There is no provision in the policy that plaintiff should be responsible for the fraudulent destruction of the property by her agent, under such circumstances. The authorities are meagre upon the question, but we have given it due consideration, in conference, and are of the opinion that such losses are within the perils of the policy, unless specially excepted therefrom by some clause or condition of the policy. Henderson v. Ins. Co., 10 Rab. (La.) 164, S. C. 43 Am. Dec. 176 ; Perry v. Mechanics Mut. Ins. Co., 11 Feb. Rep. 485 ; Plinksy v. Germania F. Ins. Co., 32 Fed. Rep. 47. The case of Midland Ins. Co. v. Smith, 6 Law Reports, Q. B. Div. 561, was one of a felonious burning of the property by the wife of the assured. The judge said : “I have no hesitation in saying that it appears to me to be upon principle perfectly clear and free from doubt that such a loss would be covered by an ordinary policy against loss by fire ; under such a policy the company would be liable for every loss caused by fire unless the fire itself were caused and procured by the wilful act of the assured himself, or some one acting with his privity and consent. In order to escape from responsibility for such a loss as the present the company ought to introduce into their policy an express exception.” Evidence, therefore, implicating M. J. Feibelman in the alleged fraud, is immaterial and irrelevant, unless connected with proof of guilty complicity therein, on the part of the plaintiff herself. The acquittal of M, Feibelman of the charge of arson has no relevancy to the case. '

The first four charges requested by the plaintiff were bad for several reasons : First, they ignore the ■ issue joined on the 19th plea. Indeed, that plea-being sustained by the undisputed evidence, the general charge could have been given for the defendant. Though the plaintiff was erroneously compelled, by the ruling of the court on demurrer, to join in the issue tendered by this plea, or suffer judgment against her, yet the case, in its subsequent stages, must have been tried a.s if the ruling was free from error. The plaintiff’s remedy was to assign the ruling on the demurrer, as error, in this court, as she has done. Second, the 13th plea, which alleges the failure of plaintiff to furnish the required proofs of loss, was answered by the special replication, which sets up the particular facts relied upon by the plaintiff, as constituting the waiver of preliminary proofs. The replication confesses the plea, and avoids it by the allegation of these special facts; consequently, these facts must-be proved, as alleged. They are, that after the fire occurred, on to-wit, the 21st day of January, 1892, the defendant’s adjuster, one A. D. Witherbee, visited the place where the fire occurred, and examined the plaintiff’s books of account, and had plaintiff’s agent to make an affidavit of the amount of loss and ascertain 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 date, January 21st, 1892, being alleged under a videlicet, the plaintiff would not be confined to strict proof thereof. The charges under consideration, would dispense with the preliminary proof, if waived by any act or conduct of the defendant, whether those alleged in the replication or not. Taking the whole evidence as it appeared before the jury, if the issue had not been restricted as it was by the replication, it could well have been submitted to the jury to determine whether the proofs of loss had not been waived by a repudiation, by the defendant, of all liability upon the policy. The instruction should have been restricted, as was the replication: Again, the replication failed, entirely, in the avoidance, for want of evidence tending to prove the material averment, that Witherbee examined the plaintiff’s books of account — thus leaving the plea confessed ; for which reason the general charge could have been given for the defendant.

Whát we have said will render apparent the vices of charges 5 and 6 requested by the plaintiff.

There was no error, prejudicial to the plaintiff, in the first charge given for the defendant. The second, so given, was abstract, as all the evidence on the-subject showed that the plaintiff was the time owner of the property insured and alleged to have been injured or destroyed by the fire.

After the jury had been in retirement, for sometime, considering of their verdict, they appeared in the court room, about 7 o’clock p. m. and made known to the court that they could not agree ; and thereupon, at the request of a juror, or moved by something said by a juror, the court proceeded to give the jury further or additional instructions in the law governing some issue or issues in the cause ; and again sent them into retirement to consider of their verdict. At the time of these proceedings, the plaintiff’s counsel, who had conducted the trial throughout in her behalf, were not present, and had no knowledge or information of the proceedings. The court made no inquiry concerning them, and took no steps to notify or give them an opportunity to be present; and there was no special circumstance or emergency which reasonably prevented giving them notice and opportunity to be present, if ordinary effort had been made to that end. There is nothing to show that they were ever informed of the proceedings until after the jury had rendered their verdict and been discharged. These facts were made the basis of a motion for a new trial, which the court overruled ; to which ruling the plaintiff excepted. This action on the part of the court was, in effect, we think, a denial to the plaintiff, of the constitutional right to prosecute the cause, by counsel, as guaranteed to her by the 11th section of the bill of rights. — Kuhl v. Long, 102 Ala. 563.

We can not inquire, in such a case, what instructions were given by the court to the jury — whether they were correct or incorrect, prejudicial or otherwise. We can not be informed of their nature or effect by lawful or constitutional methods. The counsel not being present to observe the proceedings of the court and learn, for themselves, what transpired, and by their advice and counsel, it may be, give shape to the action of the court, the plaintiff can have no just and fair representation, indeed, no constitutional representation by counsel, in making up the record for the presentation of the illegal proceedings to this court for review. If the rule be adopted that this court will inquire and ascertain what the instructions were — whether correct or incorrect, prejudicial or otherwise, and affirm or reverse according to that test, we perceive, at once, the injury which may be done the plaintiff, in the disadvantage to which her counsel may be subjected, in securing a correct bill of exceptions, either at the hands of the presiding judge, or by proceedings, in this court, to establish it, by reason of the fact that they were not present to hear and know what instructions were really given. Will the plaintiff be required, to have her counsel seek and learn from such evidence as may be possible of attainment — evidence of persons charged with no duty, in her behalf, to closely observe and understand the proceedings — what legal instructions were given to the jury by the court? Qualification to comprehend and reproduce, in their substance and effect, legal instructions to a jury, requires, if not special legal skill, close attention to the trial throughout, and a thorough understanding of the case developed, in all its parts, and the relation of the several parts to, and their bearing upon, each other. Who, upon a casual and disinterested hearing of judicial proceedings, can correctly reproduce them? Deeming it so valuable, the organic law secures to every suitor, the right to have trained and learned counsel, of his own selection, to perform these difficnlt and important duties in his behalf, and nothing will be permitted to take away the right, nor, in the least, impair it. The only safe course, therefore, when it is established that the court, without some overruling necessity therefor, gave instructions to the jury, or injected into the cause a material element of its trial, in the absence of the complaining suitor’s counsel, engaged in representing him on the trial, and without reasonable notice to them and opportunity to be present, is to' withhold all inquiry and investigation into the correctness of the instructions or action of the court, and treat them as conclusively prejudicial, by reason of the suitor’s deprivation of his constitutional right. Moreover, -if the instructions could, with a due observance of this constitutional right, be properly certified to us, we could not consider them, consistently with the law, in the absence of exceptions duly reserved. The right to accept is taken away. The right to ask counter or explanatory instructions, and to except to their refusal, is taken away. The jurisdiction of this court to revise the proceedings is rendered inoperative. The rule we declare will be applied, though, at the close of the testimony, there was nothing to submit to the jury but the credibility of undisputed evidence. The presence of the plaintiff’s agent at the proceedings complained of, can make no difference. He was not the plaintiff’s legal counsel; probably was not aware that the proceedings were illegal. At all events, he was not the one to know or speak. Nor, was the offer of the court to give the plaintiff an exception to the instruction available against the motion. Exceptions are required, not as matters of form. They are to give the court opportunity to eradicate the error from the jury’s mind. After the verdict rendered and jury discharged, an exception amounts to nothing. The motion for a new trial ought to have been granted.

'Reversed and remanded.