Opinion
6 Div. 216.
October 16, 1924.
Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.
Lange Simpson and W. H. Brantley, Jr., all of Birmingham, for appellant.
It was reversible error to refuse the general charge to the defendant. Boyle v. N.C. Ins. Co., 52 N.C. 373; Patrick v. Farmers' F. Ins. Co., 43 N.H. 621, 80 Am. Dec. 197; Fire Ins. Co. v. Felrath, 77 Ala. 194, 54 Am. Rep. 58; Central City Ins. Co. v. Oates, 86 Ala. 567, 6 So. 83, 11 Am. St. Rep. 67; Palatine Ins. Co. v. Lynn, 42 Okl. 486, 141 P. 1167; Engebretson v. Hekla F. Ins. Co., 58 Wis. 301, 17 N.W. 5; Fisher v. Travelers' Ins. Co., 124 Tenn. 450, 138 S.W. 316, Ann. Cas. 1912D, 1246; McCord v. Masonic Cas. Co., 201 Mass. 473, 88 N.E. 6. Evidence of value of the car was proper only when directed to the time in question. Stillwell v. Hill, 87 Or. 122, 169 P. 1174; Burgin v. Marx, 158 Ala. 633, 48 So. 348.
John W. Altman and J. K. Taylor, both of Birmingham, for appellee.
A substantial compliance with a condition of a policy is sufficient. Fire Ins. Co. v. Felrath, 77 Ala. 194, 54 Am. Rep. 58; Ray v. Fidelity Ins. Co., 187 Ala. 91, 65 So. 536; Phoenix Assur. Co. v. Blumberg, 204 Ala. 443, 85 So. 815.
Appellant insists that it was entitled to the general charge: First, because its plea 8 was proven without dispute; and, second, because plea 9 was proven without dispute. Plea 8 is based upon a failure to give the association immediate written notice at its home office of the loss, with full particulars. It may be conceded that the plaintiff did not comply with this condition, and that the fact that the policy required the notice to be given at the home office excluded the right to serve the same on the local agent. But if it was given to the local agent, and he sent it in to the home office, the jury could infer a substantial compliance with the condition as set out in plea 8. The jury could have well inferred that the defendant received such notice at its home office, whether given directly by the plaintiff or through the local agent, as defendant knew about the loss and sent the plaintiff certain blanks or questionnaires to be filled out, looking to an adjustment of same.
Plea 9, however, was proven. The condition there set up required a statement within 60 days, among other things, of the time of the loss, and the statement introduced was not rendered within 60 days. The letter introduced by the plaintiff from defendant shows that a statement was filed within 60 days, but was defective in omitting the time of the loss, and the evidence shows that this omission was not supplied until more than 60 days after the loss. It may be that the defendant, by the letter to the plaintiff requesting this information, contemplated a reasonable time for supplying same after the receipt of said statement because of this defect, but requested the information and thereby impliedly extended the time for supplying the same, if it could not be sent in within the 60 days. Had defendant suggested or requested that this information must reach it, or would not be accepted unless received within 60 days after the loss, the plaintiff could perhaps have wired it within the 60 days, but, having made a general request as indicated by the letter, the jury could have well inferred a waiver of the 60-day limit. True, this matter should have been more properly set up by way of replication to the defendant's 9th plea, but, as the proof tending to show a waiver was introduced without objection, this question was made an issue, and was sufficient to prevent the giving of the general charge for the defendant under its plea 9.
The excerpt from the oral charge as set forth in the second assignment of error does not appear to have been excepted to by the appellant.
The trial court did not commit reversible error in permitting the witness Evans to testify as to the value of the car just prior to its loss by fire. True, the witness stated he did not know the market value the day it was burned, but he was familiar with the car, and there was enough evidence in the record as to the use and condition of the car between the last time Evans saw it and the day it was burned as to make his evidence as to value relevant.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.