Utica Mutual appeals from a judgment in favor of Col. Barber for $1,000.00 in a suit for indemnity for loss of household goods stolen from his residence at Santa Rosa, Florida.
The main question here is whether this personal property was covered by Utica Mutual's Broad Form Personal Theft Policy No. 27379 RT
The case was tried without a jury with the following facts stipulated:
In addition, the plaintiff introduced in evidence the policy which provides, under Coverage A, by reason of loss from the "premises or a depository," indemnity [with respect to (a) jewels and furs, and (b) all other property] up to a combined limit of $1500.00. Coverage B, "Loss Away From the Premises," gives a combined indemnity limit to $1,000.00.
In Item 1 of the declaration, the policy reads that the premises are located at 2919 Surry Road, Birmingham, Alabama, "unless otherwise stated herein: ______"
Recovery, if at all due, comes under Coverage B, "Loss Away From the Premises," which, in the insuring agreement, is stated as follows:
Accordingly, we consider that the quoted clause would operate as an exclusion of Coverage B unless an "insured" was temporarily residing at the Florida dwelling when the property was stolen.
The policy defines "insured" as follows:
The appellant's brief gives a summary of Col. Barber's testimony; and, with respect to the Florida property, it extracts the cross-examination as follows:
There was no proof that any other member of the household was staying at or near the Florida house at the time of the theft.
We conclude that Col. Barber's nephew was not a permanent member of Col. Barber's household. McGrady v. Liberty National Life Ins. Co., 40 Ala. App. 390, 114 So.2d 324. Mr. Davis's presence at the Florida dwelling could not, therefore, assimilate Coverage B of this policy to the property therein.
Over objection the trial judge admitted testimony as to the negotiations which Col. Barber had with the issuing agent for Utica Mutual to show that for a number of years he had requested express coverage as to an alternate set of premises in the policies issued to him in various companies.
This testimony should not have been received by the trial court because this action was upon an express written policy, not for the breach of an oral insurance or agreement to insure. See Globe & Rutgers Fire Ins. Co. v. Eureka Sawmill Co., 227 Ala. 667, 151 So. 827, as to pleading and proving verbal contracts of insurance or to insure.
In Hartford Fire Ins. Co. v. Shapiro, 270 Ala. 149, 117 So.2d 348, Livingston, C. J., excerpted from Judge Andrews in Mitchill v. Lath, 247 N.Y. 377, 160 N.E. 646, 68 A.L.R. 239, as to three conditions required of an oral agreement admissible to vary a written one. The third requisition reads: "* * * it must be one that parties would not ordinarily be expected to embody in the writing, * * *." Adapting this to a policy which had certain schedule spaces left blank, our court concluded (1) the blanks implied that the parties did not intend to contract thereabout; (2) "insurance contracts are notoriously complete"; and (3) the facts supported completeness.
After discussing counts in Shapiro's complaint charging breach of an oral agreement (with a reference to the doctrine of merger by acceptance of a written policy), the opinion went on to say "an insured is presumed to be familiar with the provisions of his policy."
Accordingly, under the Shapiro case, supra, the judgment of the circuit court is due to be reversed and the cause there remanded.
Reversed and remanded.