American Workmen v. James

THOMAS, J.

(1) The court committed no error in sustaining the plaintiff’s demurrer to defendant’s plea No. 2, as is so clearly pointed out in the following authorities as not to require discussion: Louisiana, Lumber Co. v. Farrior, 9 Ala. App. 383 , 63 South. 788 , and cases there cited; Ikard v. Armstrong, 10 Ala. App. 657 , 65 South. 849; Smith v. Elrod, 122 Ala. 269 , 24 South. 994 ; Andrews v. Tucker, 127 Ala. 612 , 29 South. 34 .

(2, 3) The defendant also complains that the court sustained demurrers to said plea 2 as amended, but the record does not disclose this to be a fact. It is true that two amendments of the plea appear in the record, but it nowhere appears that plaintiff’s demurrer to the plea was refiled after the amendments to the plea were made; nor does the judgment entry disclose any ruling on demurrers, if any were filed, to defendant’s said plea numbered 2 as amended. Moreover, the trial was had and the evidence developed, pro and con, and charges given, as if the issue presented by the plea was an issue in the case; hence we must presume either" that the plea remained in, or, if demurred out, that the defendant was allowed the benefit of it under the plea of the general issue, which precludes him from complaining even if the court had wrongfully sustained, which does not appear, a demurrer to said plea as amended. —Padgett v. Gulfport Fert. Co., 11 Ala. App. 366 , 66 South. 866 .

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(4) The court committed no error in permitting the plaintiff to introduce in evidence the letter shown to have been received by plaintiff in due course of mail in response to a letter previously written and forwarded by plaintiff to defendant by mail; the letter so introduced in evidence by plaintiff purporting to have been written by defendant and acknowledging the receipt of and being a reply to plaintiff’s said letter. The presumption or inference in such case is that the letter was written by defendant, or for it by some one authorized by it, which presumption or inference continues until overcome by evidence to the contrary offered by defendant.—14 Encyc. Evidence, 744; White v. Tolliver, 110 Ala. 300 , 20 South. 97 ; O’Connor Min. & Mfg. Co. v. Dickson, 112 Ala. 308 , 20 South. 413 ; Burton v. State, 141 Ala. 34 , 37 South. 435 ; L. & N. R. R. Co. v. Britton, 149 Ala. 554 , 43 South. 108 . There was no such evidence offered. On the contrary, the further circumstantial evidence which was developed during the course of the trial removed all question but what the letter was either written by defendant or for it by its authority. This'letter, after acknowledging receipt of the undertaker’s certificate of the burial of plaintiff’s wife, the insured, stated that R. L. Cooper, who the letter named as defendant’s insurance adjuster, would call on plaintiff in a few days and make settlement of the insurance policy here sued on and in which plaintiff was named as beneficiary.

(5) After the introduction of this letter, the plaintiff then introduced in evidence a letter of later date received by him from the said Cooper, in which Cooper stated that he was defendant’s insurance adjuster and had in his possession, which he stated he had received from defendant, a check for the benefit due plaintiff • under the said policy on the life of plaintiff’s wife, and that he (Coopér) would be down in a few days to deliver it to plaintiff, and for plaintiff to have the policy in readiness to surrender then. The objection interposed by defendant to introduction in evidence by plaintiff of this latter letter was that it had not been shown that Cooper had authority from defendant to write the letter. Such objection was clearly untenable in the light of the letter from defendant to plaintiff which had been previously introduced, and whose contents have been just stated, and wherein Cooper was named as defendant’s adjuster.

(6-9) It appears from the evidence without dispute that said Cooper did, in pursuance of the promise contained in his *481 mentioned letter to plaintiff, come to see plaintiff to make with plaintiff a settlement of the benefit due under the policy, bringing with him (Cooper) a check from defendant payable to plaintiff, but that the check, instead of being for the amount of the benefit named in the policy, to-wit, some $360, was only for $75. The sole dispute in the case arises over the question as to whether or not plaintiff, who (after much parleying, as both sides testify) accepted the check and surrendered to Cooper the policy, accepted it in full settlement of the benefit due under the policy, or only as a credit thereon, and, if the former, whether there was any adequate consideration to support it (Smith v. Elrod, 122 Ala. 269 , 24 South 99 ), or any bona fide dispute on defendant’s part of its liability under the policy which would justify in law the payment of a less amount in accord and satisfaction of a larger amount due. —Louisiana Lumber Co. v. Farrior, supra, and the other cases first cited in this opinion! The evidence was_ in conflict on this, the only controverted question in the case, and, being in conflict, the court did not err in refusing the general affirmative charge requested by defendant, nor in giving charges 1, 2, and 3 requested by plaintiff.

(10) The fact that Cooper had no authority to deliver to plaintiff the $75 check unless it should be accepted by plaintiff in full settlement of defendant’s liability under the policy, and that plaintiff at the time he accepted the check knew this fact, would not relieve defendant of liability for the remainder actually due on the policy, unless there was a bona fide dispute as to that liability, or, if not, unless there was some other consideration moving to plaintiff in addition to the $75 check. — Authorities here first cited.

(11) There was no error in the action of the court in excluding from the consideration of the jury the letter offered in evidence by defendant purporting to be from defendant to said Cooper, written after the settlement mentioned, as it (the letter) was not material to any issue in the case.

We have reviewed the questions assigned and insisted upon in brief, and, finding no error,, the judgment appealed from its affirmed.

Affirmed.