
    Capital City Insurance Co. v. Caldwell Brothers.
    
      Action on Policy of Insurance against Fire.
    
    1. Ownership of insured property; representations as to, and proof. In an application for a policy of insurance on a storehouse, a statement or rei>resentation, in answer to one of the printed questions, that the applicant has a “fee-simple title,” only means that he owns the absolute beneficial interest, as contradistinguished from a limited, qualified, or conditional interest; and in an action on the policy, he may testify that lie bought and owned the property, without producing his deed, or proving payment of the purchase-money.
    2. Notice and preliminary proof of loss. — Notice and preliminary proof of the loss having been promptly furnished, and no objection made to them in reply, after which the company’s adjuster was sent to the place, who only objected to the valuation of the property as excessive, and insisted that the counters and shelves were not insured as a part of the house, this amounts to a waiver of all objections to the sufficiency of the notice or preliminary proof.
    8. Counters and shelves as part of storehouse. — Counters and shelves in a storehouse may be insured as part of the house itself, when built or let into the walls or frame thereof, though not expressly mentioned in the application or the policy; and it is for the jury to determine from the evidence whether they are part of the house or not — whether they are movable or immovable fixtures.
    Appeal from the Circuit Court of Madison.
    Tried before the Hon. H. C. Speaks.
    This action was brought by Caldwell Brothers, a mercantile partnership doing business at Scottsboro, Alabama, against the appellant, a domestic corporation, whose principal place of business was at Montgomery; and was founded on a policy of insurance of a storehouse at Scottsboro against fire, which the defendant had issued to the plaintiffs. The house was a two-story frame building, in which the plaintiffs carried on their mercantile business; and it was insured by the policy for $1,500. The policy was dated December 9th, 1884, and was for the term of one year. The house was totally destroyed by fire on Christmas night, 1884, and the action was brought on the 17th September, 1885. The complaint contained a single count, which wras in the form prescribed by the Code, Form No. 13, p. 792. The defendant filed five pleas, but a demurrer was sustained to the 5th plea, and its sufficiency is not considered by this court, though presented by the assignment of errors. The first plea alleged generally tbat “tbe facts stated in tbe complaint are not true.” Tlie 2d plea alleged tbat one of tbe conditions of tbe policy required tbat tbe insured should, “witbin fifteen days after loss accruing, give written notice thereof to defendant, and render to defendant on oath, witbin sixty days after such loss, a particular account of such loss, stating tlie time, cause, and circumstances of tbe fire, tbe occupation of tbe building insured, and tbe value of such building; and tbat plaintiffs bad not complied with this condition. Tbe 3d plea alleged tbat tbe plaintiffs’ application for insurance stated tbat tbe amount of insurance asked on tbe building was not more than tbree-fourtbs of its cash value, and that $1,500, the amount of tbe policy, was more than tbree-fourtbs of tbe value of tbe property. Tbe 4th plea alleged tbat tbe policy contained a provision giving the insurance company an option, in tbe event of a loss, to rebuild the bouse, and tbat tbe plaintiffs would not assent to such rebuilding, on tbe defendant’s offer to rebuild witbin a reasonable time after tbe loss. Issue was joined on each of these pleas.
    On tbe trial, as the bill of exceptions shows, tbe plaintiffs offered tbe policy in evidence, tbe first provision of which was in these words : “Tbe application and statements of tbe assured, concerning tbe risk, are tbe basis of this contract; and any misrepresentation, or omission to make known every material fact concerning tbe risk, shall vitiate this policy; . . . and if tbe exact interest of tbe assured in tbe property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in tbe policy, then this policy shall be void.” Another provision in the policy was in these words : “(5.) Persons sustaining loss or damage by fire shall forthwith give notice of such loss, and shall, as soon-as possible thereafter, render preliminary proof, giving an accurate and particular account of such loss or damage, signed and sworn to by them, and shall produce such other evidence, and submit to such examination, as tbe manager or any person appointed by this company may require; which statement shall be accompanied with a certificate from a magistrate or notary public nearest to tbe place of fire, . . tbat be has examined tbe circumstances attending tbe loss, and verily believes tbat tbe assured has honestly and through misfortune sustained a loss on tbe property insured; and until such proof, declaration and certificates have been produced, and such examinations as may be required have been permitted by tbe claimant, tbe loss or any part thereof shall not be clue or payable.” Tbe policy also contained a provision giving tbe company tbe option to rebuild in tbe event of a loss. Tbe policy was signed by tbe president and secretary of tbe defendant company, but beneath their names was written a memorandum in these words : “Dated at Huntsville, Ala., this 9th December, A. D. 1884, and issued there;” and this was signed, “H. B. DUlarcl, secretary, agent for said company.”
    The application for tbe policy, which was read in evidence by the defendant, was made out on one of tbe printed forms of tbe Home Protection Company of North Alabama, but tbe name of that compary was erased, and that of tbe defendant in this case substituted. Tbe application was made out by W. G. Stuart, who was tbe agent at Scottsboro of said Home Protection Company, and it was forwarded by him, by mail, to said H. B. Dillard, tbe secretary of said company at Huntsville. In tbe printed part of this application it is stated, that tbe answers and statements therein made “form part and parcel of tbe policy, as well as tbe warranty of the applicant.” Tbe original application was sent to this court for inspection, and tbe opinion states tbe material facts shown by it. There was no objection to tbe admission of tbe application and tbe policy, or either of them, as evidence.
    The plaintiffs proved that, on tbe day after tbe fire, they sent á letter by mail to said Dillard, at Huntsville, and another on tbe 22d February, 1885, in reference to tbe matter. Tbe first letter was in these words : “Our storehouse, for Avbicli we bold insurance policy in the Capital City Insurance Company, No. 6,529, to tbe amount of $1,500, was burned last nigfit; cause unknown. Please accept this as notice, and advise us of proper steps for a settlement.” Tbe other letter was in these words: “To-day is tbe 59th day since we were burned out. Tour adjuster has not yet been here. What does be intend to do? or what more does be want us to do? We received a letter saying that be would be here last week, but we have not seen him. Please let us have some satisfaction in regard to this matter, as we think we have waited long enough.” Tbe plaintiffs proved, also, that some time in March, 1885, J. B. Abrams, tbe adjuster of tbe defendant company, came to see them at Scottsboro, accompanied by a contractor, who made an estimate of tbe cost of rebuilding; but nothing came of this interview, as tbe adjuster insisted that tbe counters and shelves were not included in tbe policy, and would not include them in tbe estimate of tbe cost of rebuilding; and be further insisted that the house was over-valued in the policy. The plaintiffs offered in evidence, also, a letter which they had received from said Abrams, dated at Montgomery, April 1, 1885, in these words: “The papers sent by you, under date of March 21st, purporting to be proofs of loss under your policy, No. 6,529,' have been referred to me. I beg to say in reply, these papers are wholly insufficient as such joroof of loss required of you under the conditions of the policy. You say the value of the building was about $2,400, without the plan, or specification, or any particular statement or estimate, showing how this amount had been reached. Based upon the paper you have submitted, the company has no means of testing the correctness or incorrectness of the value you fix upon the building in question. The company requires the plan and specifications of the building in detail, and the papers you have sent in are therefore.held at the company’s office subject to your order. You are respectfully referred to the 5th paragraph of your policy.”
    E. H. Caldwell, one of the plaintiffs, was examined as a witness in their behalf, and his testimony,. in the form of question and answer, is set out in full in the bill of exceptions ; two exceptions reserved being thus stated: “ Q. ‘To whom did the building belong?’ A. ‘Caldwell Brothers. (Defendant objects, objection overruled, and defendant excepts.)” “Q. ‘What did you do after this [that is, sending the first letter] in reference to having a reference made?’ A. Tmade a sworn statement.’ (Defendant objects, objection overruled, and defendant excepts.)” Other parts of the testimony of said Caldwell are copied in the opinion of the court, and other exceptions to rulings on evidence were reserved, but they' are not assigned as error.
    The court instructed the jury as follows: (1.) “It is incumbent on the plaintiffs to prove to your satisfaction that, after the fire, they gave notice of their loss to the defendant or its agents, and as soon thereafter as possible their preliminary proofs, giving an accurate and particular account of such loss or damage, signed and'sworn to by them, accompanied by a certificate from a magistrate or notary public, certifying that he examined the circumstances, and verily believes that they have honestly, through misfortune, sustained a loss on the property insured; or prove to your satisfaction that the defendant, through its agents, received notice of such loss and proofs as stated And if you believe from the evidence that Abrams was adjuster for defendant, with authority to adjust such loss, and went to Scottsboro, 
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    (7.) “Under tbe conditions contained in said policy, it was optional with tbe defendant to repair, rebuild, or replace tbe property with other of like bind and quality within a reasonable time, on giving notice of their intention to do so. If tbe defendant offered to so rebuild, and tbe plaintiffs refused to permit such rebuilding, unless tbe defendant would furnish shelving and counters, tbe plaintiff can not recover in this case, as tbe shelving and counters were not insured under said policy.”
    (8.) “Tbe deposit in the post-office of a statement of tbe preliminary proofs, as required by tbe policy, at Scottsboro, Alabama, and addressed to H. B. Dillard, secretary, or to Home Protection Insurance Company, as agent, was not a delivery of such proof to them, and could not operate to fulfill the requirements of tbe contract, that such proofs of loss should be rendered to tbe company.”
    (9.) “There is no evidence in this case tbat tbe defendant bas waived tbe Conditions in said policy requiring tbe plaintiffs to render preliminary proofs of tbe alleged loss, giving an accurate and particular account of such loss, signed and sworn to by them, accompanied by a certificate from a magistrate or notary public, as provided by tbe said policy.”
    (The 10th charge, as copied in tbe transcript, is not intelligible.)
    (11.) “The preliminary proofs should bave been sent to tbe defendant, at Montgomery, Alabama, and not to tbe Home Protection Insurance Company, at Huntsville, Ala., or to tbe secretary of said Home Protection Insurance Company, H. B. Dillard.”
    (12.) “The letter purporting to bave been written by J. R. Abrams, dated Montgomery, Ala., 4-1, 1885, is not evidence in this case.”
    (13.) “Under tbe terms of tbe policy, tbe ascertainment of tbe amount of tbe loss, by Mr. J. É. Abrams, tbe adjuster, did not decide or fix tbe liability of tbe defendant, and no question can arise, in this case, as to defendant’s waiving any condition required by tbe contract of insurance, to be performed by the plaintiffs.”
    (14.) “The answers made by the plaintiffs to the questions propounded in the application, are warranted by them to be true, whether material or not; and if any of said answers are found to be untrue, the policy is void, whether the answers are material or not, and the verdict of the jury should be for the defendant. The jury have nothing to do with the materiality of such answers.
    (15.) “The plaintiffs are required under said policy, when sustaining loss or damages, as soon thereafter as possible to render preliminary proofs, giving an accurate and particular account of such loss or damage, signed and sworn to by them. There is no evidence that the plaintiffs have complied with this condition of the policy, and for this reason they are not entitled to recover; and the verdict of the jury should be for the defendant.”
    The charges given by the court, the refusal of the several charges asked, the two exceptions to the testimony of Caldwell as above stated, and the sustaining of the demurrer to the fifth plea, are assigned as error.
    LAWRENCE Cooper, for appellant.
    (1.) The application for the policy and the policy itself are to be construed together as parts of one and the same contract, each expressly referring to the other ; and the statements in the application being in the nature of warranties, a misrepresentation avoids the policy, especially where it is as to a material matter. — lWood on Fire Insurance, § 50; May on Insurance, P 29,159; Chaffee v. Insurance Go., 18 N. Y., 376. (2.) The interest of the assured in the property is material to the risk, and he is required to make a full and true statement of the facts relating to it.— Williamson v. F. 0. Fire Asso., 84 Ala. 106; Western Asso. v. Stoddard, 88 Ala. 606; 28 Central Law Journal, 6. The assured represented that they had a “fee-simple title” to the property insured, and their evidence fails to show that they had any legal title whatever. One of them may have had an equitable fee simple in the lot, but, if he had any conveyance, or written evidence of title, the fact was not proved. Snodgrass had an interest in the building, which he sold to one of the assured ; but whether by written contract or by parol was not shown, nor was it shown that the purchase-money had been paid. The misrepresentation as to the title or interest of the assured avoids the policy.. — Phoenix Insurance Co. v. Browder, 19 Amer. St. 326. Besides, exceptions were' reserved to tbe competency of tbe evidence as to tbe title of tbe assured, and these exceptions are assigned as error. (3.) Tbe counters and shelves were not covered by tbe policy. — 1 Wood on Fire Insurance, § 56. (4.) Tbe instructions of tbe court as to tbe waiver of notice and proof of loss were erroneous. — Insurance Go. v. Gales, 86 Ala. 558; Insurmee Go. v. Young, 86 Ala. 424. (5.) A complaint in tbe statutory form is a bare statement of legal conclusions, and a plea of tbe general issue imposes on tbe plaintiff tbe burden of proving all tbe material facts necessary to support those conclusions. — Ala. Gold Life v. Mutual Insurance Go., 81 Ala. 329; 2 Greenl. Ev., § 404; 2 Wood on Fire Insurance, 519; 28 Central L. J. 5, 6.
    Humes & Sheeeet, contra.
    
    (1.) There was no special plea setting up a breach of warranty of title, and that defense was not available under tbe general issue. — Code, § 2675, and citations. (2.) There was no evidence whatever to support tbe second plea, tbe conditions of tbe policy as to notice and proof of loss being substantially variant from tbe allegations of tbe plea. (3.) Tbe only objection made by tbe adjuster to plaintiffs’ notice and proof of loss was, that tbe plans and specifications of tbe building were not furnished; and this was a waiver of all other objections, if any existed. — Insurance Go. v. Felrath, 77 Ala. 201; 5 Lawson’s Rights and Remedies, 3544. Tbe adjuster afterwards went to Scottsboro, accompanied by a contractor, to whom a particular description' of tbe destroyed building was submitted, with a view to estimates for re-building. — Insurance-Go. v. Oates, 86 Ala. 569; Insurance Go. v. Mien, 80 Ala. 571; Badger v. Insurance Go., 49 Wise. 389; Fisher v. Orescent I'u-swance Go., 33 Fed. Rep. 544; 7 Amer. & Eng. Encyc. Law, 1054; 11 lb. 341. Tbe notice and proofs of loss submitted by plaintiffs were in tbe defendant’s possession, and were not produced on tbe trial. (4.) Tbe shelves and counters, if part of tbe building, were covered by tbe policy; and tbe question whether they were .part of tbe building was properly submitted to the jury. — Tillman v. DeLacy, 80 Ala. 10á; Insurance Go. v. Allen, 80 Ala. 578; 27 Mich. 289; 8 Amer. & Eng. Encyc. Law, 41-61. (5.) Tbe policy described tbe insured building as occupied by Snodgrass & Caldwell, when in fact it was occupied by Caldwell Brothers; but defendant can not take advantage of this fact, since it was tbe mistake of its own agent. — Assurance Go. v. Stoddard, 88 Ala. 611; 84 Ala. 106; 11 Amer. & Eng. Encyc. Law, 302; 5 Lawson’s B. & B. 3594. (6.) Tbe letter of Abrams, tbe adjuster, was admitted without objection.
   STONE, 0. J.

All men know that, in cities and towns, business bouses generally, and residences frequently, are constructed in such close proximity, that tbe loss of one by fire endangers others. It is on this account that fire-insurance companies, in placing their risks, take into tbe estimate wliat are called tbe exposures, and regulate tbe premiums they charge for insurance in reference thereto. So, if tbe braiding proposed to be insured be very valuable, and tbe sum to be insured be large, it is not customary to place tbe entire risk in one company, but in several. íhis, because if loss is suffered (and losses will be suffered), the burden will be distributed among many companies, and not left entirely to one, which it might crush. And when many buildings are so nearly connected, one with the others, as that the burning of one of them would be likely to set fire to the others, it is neither customary, nor in accordance with business principles, to insure them all in one company. And this, at last, is but carrying into practical operation the economic philosophy of insurance — the helpful participation and aid of the many in sharing the loss which casualty casts on one. A loss of ten thousand dollars might bankrupt one trader, while, if it were distributed among a hundred or more, it would scarcely be felt. In theory, all the premium-payers contribute their several contingents, which collectively make up the sum to be paid. This is the rationale of insurance.

The Home Protection Insurance Company had its business office in Huntsville, Alabama. The Capital City Insurance Company had its habitation in Montgomery, Alabama. The iormer was the Huntsville agent of the latter. This is not uncommon. It furnishes to insurance companies the opportunity, when large insurance is sought, or when application is made for insurance of two or more buildings, or their contents, which are situated in one block, or in dangerous proximity to each other, to distribute the risk, and thus escape an individual, heavy loss, which, if it fell on one company, might be very disastrous to its business aims.

The foregoing reflections are common knowledge. We have given expression to them, because, in our opinion, they shed light on several questions which the record before us presents for our decision. They tend to explain why it was that the storehouse, the subject of insurance in this case, was insured in tbe Capital City Insurance Company; and wby it was that tbe agent of tbe Home Protection Company was tbe agent or person tbrougb wbom tbe insurance was obtained. Tbe Home Protection Insurance Company, being a corporation, could not act as tbe agent of tbe Capital City Company, otherwise than tbrougb its officers or agents. Corporations can not act in any other way.

Caldwell Brothers were merchants, having their place of business in Scottsboro, Alabama, not far from Huntsville. Stuart, a resident of Scottsboro, was tbe agent at that place of tbe Home Protection Insurance Company. Tbe Capital City Company bad no agent ad that place. Tbe Home Protection was tbe Capital City’s agent at Huntsville. Caldwell Brothers bad obtained insurance on their stock of merchandise, and they made application to Stuart for insurance on the storehouse. We have no doubt that tbe preparation of tbe written application was largely participated in by him. Such is tbe usual custom. Tbe merchandise insured in tbe Home Protection, being in tbe storehouse on which tbe insurance was sought, tbe burning of either would be apt to involve tbe destruction of tbe other. Hence tbe reasonable desire that two risks should be assumed by different companies, in order that, if loss ensued, it should not fall entirely on one company. We think we are in safe bounds when we suppose that when Caldwell Brothers applied to Stuart for insurance on tbe storehouse, tbe latter preferred tbe risk should be assumed by tbe Capital City Company, rather than that tbe double loss should fall on one company, in case of its destruction by fire; and that it was at bis instance the policy was taken in tbe Capital City Company. Tbe circumstances of this case furnish ample evidence from which tbe jury could infer that Stuart was tbe authorized agent of tbe Capital City Insurance Company, in receiving and forwarding tbe application. And if there were doubt of this, tbe conduct of tbe Capital City tbrougb its agents, after tbe fire, furnishes circumstances tending to show a ratification of tbe issue of tbe policy in this case. These, however, were questions for tbe jury. There was no error in receiving testimony of Stuart’s agency in receiving and forwarding the application for insurance in this case, nor of any other act done by him, bearing on tbe merits of tbe present controversy.

When tbe application was made for insurance in this case, tbe general questions were propounded, and answered by one of tbe Caldwell Brothers. One question propounded was, “Have you fee-simple title?” Tbe answer was, “Tes.” One danse of tbe application is in tbe following language : “Said answers are considered tbe basis on wbicli insurance is to be effected, and tbe same is understood as incorporated in, and forming a part and parcel of tbe policy, as well as tbe warranty of tbis applicant.” A question was raised on tbe trial as to tbe title held by Caldwell Brothers in the lot on which tbe storehouse stood, and as to tbe manner of proving that title.

Tbe complaint filed by plaintiffs consists of a single count, which is a substantial copy of Form 13 of tbe Code, p. 792. Tbe case was tried on issues raised by four pleas. Tbe first plea is a general denial of tbe averments of tbe complaint. Tbe others are special pleas, but neither of them specially raises tbe question of title. One of tbe plaintiffs, while on tbe witness stand, was asked as to tbe ownership of, and title to tbe lot on which tbe storehouse stood. He testified that tbe building belonged to himself and brother — Caldwell Brothers. In tbe cross-examination tbe following questions were asked, and answers given: Q. “You and your brother owned it ?” (tbis storehouse.) A. “Yes. Snodgrass and I built it, and then my brother took bis place.” Q. “Did you do it in writing ?” A. “No.” Q. “From whom did you buy tbe lot?” A. “A man named Hugh Bynum.” Q. “Did be make you and Snodgrass a deed for it ?” A. “I dont remember. I gave him a horse for tbe lot. Snodgrass sold bis interest to my brother George.” Q. “Was that contract in writing between Snod-grass and G. B. Caldwell ?” A. “I am not certain. I think it was.” Q. “Have you tbe paper with you?” A. “No.” Q. “Where is it?” A. “I reckon it is at home, or destroyed.” Q. “What is your best recollection about it?” A. “I know that when we traded for tbe accounts, there was a written contract between Snodgrass and myself, but as to tbe lot, I dont remember whether there was or not.” Q. “If there was any deed made, you do not know it?” A. “So far as tbe bouse and lot were concerned, I could not say whether there was a scratch of tbe pen.”

Tbe foregoing is substantially all tbe evidence bearing on tbe question of ownership in, or title to tbe lot on which tbe storehouse stood. The defendant corporation asked charges based on tbe question of title. One of them is in tbe following language : “It is not shown in tbis case that the plaintiffs bad tbe fee-simple title to said property so insured; and for tbis reason they can not recover in tbis case, and tbe verdict of tbe jury must be for the defendant.” There was an exception reserved to tbe refusal to give tbis charge. There had also been objection and exception to Caldwell’s testimony, that the building belonged to himself and brother.

In a suit at law founded directly on land-ownership, nothing less than what the law calls a legal title will sustain the action. Either a paper title, ten years adverse enjoyment, or something equivalent, must be shown. But this suit does not bring the title to the property directly in issue. It is not necessary that the complaint shall aver a title. That question comes up collaterally and defensively. Ownership is a material factor in assuming insurance risk on improved real estate, but 'not because the evidence of the ownership is considered. The extent of the ownership is the important element of inquiry. This, because the law, voicing common experience, presumes that the absolute owner of property will be more watchful of its preservation, than would a mere tenant, or one owning only a partial interest. And this watchfulness would be scaled, not by the form of the title, but by the extent of ownership. One owning a perfect equity in improved real estate would feel the same solicitude in preserving it, as he would feel if he held the legal fee.

In Phoenix Insurance Co. v. Browder, 67 Miss. 620 — s. o., 19 Amer. St. Rep. 326 — the defense attempted was the same as that relied on in this case. True, there was some writing in that case, but it fell short of creating an estate in fee simple. The court said: “What is meant by the words “absolute fee-simple title” in this connection? It can only mean that the assured did not have a limited interest in the property, but that he claimed and held under a deed of conveyance, or other evidence of title, purporting to invest them with an estate in fee simple. It can only mean that the assured held under a paper title conferring on them this sort of estate, as contradistinguished from any limited and inferior one. The reason for this distinction is obvious. The insurer will not deal with, nor take the great risk of indemnifying against loss and damage, a mere tenant, lease-holder, or other person claiming and having only some qualified interest in the property; but this contract for indemnity will be made only with the person having the title — the beneficial owner — the person having the absolute, i. e., the vested, as opposed to the contingent or conditional title.”

True, in the case from which we have quoted, there was some sort of paper title, but it did not convey the fee. It did not come up to the letter of the representation made in tbe application. It would not liave supported an action of ejectment for tlie property. But we can not suppose tbat the court rested, or intended to rest its judgment, on the fact that there was a paper. The true ground of the decision is expressed in the declaration by the court, that “It [the assertion that the assured had a fee-simple title | can only mean that the assured did not have a limited interest in the property.” We fully approve the following language of the Mississippi court, found in the opinion from which we have been extracting: “By the insertion of those words [fee-simple title] in the condition of its policies, can it be successfully maintained that the insurance company meant that every loss occurring under its policies, in which the assured should be unable to show a title indefeasible and good against the world — a title free from every defect, real or seeming, and on which not the smallest cloud rested— should be borne by the assured? To tolerate such an opinion would be equivalent to holding that the company had deliberately set a trap to ensnare the simple-minded and unwary. . . . We can not believe that any honestly directed and fair-dealing company will deliberately undertake the management of its business on such basis.”

In the case before us, we can not know what the true state of the title was. The pleadings had given no notice that any question would be raised on the title to the lot on which the storehouse stood. The main issue raised.by the pleadings was, whether the storehouse had been destroyed by fire, in such manner as to fix a liability on the insurance company therefor. As we have said, the extent of ownership held by the assured in the building was the material inquiry, because such interest stimulates solicitude and watchfulness in its preservation. The interest, not the evidence of it, is the stimulus. We find no error in the rulings of the court on the question of the ownership of the property, or the testimony by which it was established.

Questions were raised on the sufficiency of the proofs of loss. We are not informed precisely what the proofs were. After they were furnished, the adjuster visited the premises, and made and submitted an estimate of the cost of rebuilding. It is not pretended that, either at that time or before, he made any objection for the want of timely notice of the loss, or that he complained of the insufficiency of the preliminary proofs, except on a single ground, which we think was untenable. The main objection he urged, when he visited the place, had reference to the counters and shelving, to bee onsidered further on. This, under all the authorities, must be regarded as a waiver alike of notice of loss, and of the insufficiency of the preliminary proof.' — Fire Ins. Co. v. Felrath, 77 Ala. 194; Badger v. Glenn Falls Ins. Co., 49 Wis. 389; 7 Amer. & Eng. Encyc. of Law, 1054; 11 Ib. 341; Central City Ins. Co. v. Oates, 86 Ala. 558-68-9; Com. Fire Ins. Co. v. Allen, 80 Ala. 571.

The claim for the counters and shelving, testified to have been burned with the building, presents the only remaining question we need consider. The testimony is that they were framed and built with the building, and were not movable fixtures. They were not named separately, and were not insured, unless they constituted a part of the storehouse. The primary meaning of the word fixture- is, “that which is fixed or attached to something as a permanent appendage.” In law it takes a wider range. Anything fixed or attached to a building, and used in connection with it, is a fixture, whether it be a permanent appendage or not. Hence, in legal jurisprudence, there are movable fixtures and immovable fixtures. Whenever the appendage is of such a nature that it is not part and parcel of the building, but may be removed without injury to the building, then it is a movable fixture, and is a chattel. It is no part of the realty, and does not pass with a conveyance of the freehold. If, however, it be so connected with the building as that it can not be severed from it without injury to the building — a disturbance of its rounded completeness- — then it is part of the realty, and it passes with the conveyance of the soil. Of course, these principles apply only when there is no agreement of parties varying these legal intendments. — 8 Amer. & Eng. Encyc. of Law, 43, 61; Rapelje & L. Law Dictionary; O’Brien v. Kusterer, 27 Mich. 289 ; Tillman v. DeLacey, 80 Ala. 103, and authorities cited. It is manifest that, in this case, if the only testimony on the question be believed, a conveyance of the freehold would have carried with it the counters and shelves.

The insurance company had a printed form of application for insurance. The one made and used in this case has been sent up for our inspection. It contains many questions to applicants, so framed as to suit the various kinds of property, of which insurance against loss by fire is sought and obtained. The applicant is required to answer such of the questions as are applicable to the insurance risk he seeks. In this instance, the applicants sought insurance on a store building, which they valued at $2,300. The insurance obtained was $1,500. This is the only item of property to which any answer was made, although the form contained a blank for “counters, shelves and drawers.” Neither the policy nor the conditions annexed to it make any reference to these fixtures, but a pen-dash indicates that that question, together Avith many others, was regarded as immaterial. We hold the proper inquiry for the jury was, whether the counters and shelves were movable or immovable fixtures. If the former, they were not insured. If the latter, they were part of the storehouse, and Avere covered by the policy.

We need not apply these principles to the charge given, nor to the various charges refused. In none of its rulings did the Circuit Court err.

Affirmed.

Walkee, J., not sitting, having been of counsel.  