133 Ala. 632 | Ala. | 1901
A policy of insurance should designate the property, so that the subject insured and the risk may be determined. In case of doubt as to' AArhat property is covered, the construction will be against the insurer. — 2 Joyce on Insurance, § 1690.
Touching mistakes in the description of property insured, Mr. May observes that “knoAvledge of the company or its agents of the untruthfulness of the statements as to the distance,of neighboring buildings, or of inaccuracy or incompleteness in the description of the property, a.t the time AAdien the insurance is effected, by the. general* concurrence of-the more recent decisions, Avill estop the insurers from setting up such untruthfulness in defense.” — 1 May on Insurance, § 262. Again, the same author states the rule of modern decisions to
In case of the insurance of a ship, which is as applicable to a house, it is said: “If both parties have in view the same vessel, and the underwriter, when the policy is issued, knows its true name, and it is intended to insure that particular ship, a mistake in the name of the vessel would not prevent a recovery for its loss, there being no fraud or concealment, and the contract being otherwise valid and complete.” — 2 Joyce on Ins., § 1445; Hughes v. Mercantile Ins. Co., 55 N. Y. 265.
In James Rivers Ins. Co. v. Merritt & Robertson, 47 Ala. 387, the plaintiffs stated verbally to defendant’s agent that they desired insurance on their saw mill and machinery, and told him where it was. The agent visited it for the purpose of examination and inspected it to his satisfaction, and afterwards wrote the application which the plaintiffs made. A loss occurred, and on suit for its recovery, the company defended on the ground that the insurance was obtained on the written application of plaintiffs, and there was a misrepresentation or concealment of the presence of a planing machine in the building insured, which was not included in the property insured. The court said that the agent visited the saw-mill for the purpose, of examination, and inspected it to his satisfaction. He saw the planing machine., and made inquiries about it. Afterwards, he wrote the application which the plaintiffs made. He insured other planing mills at the same rate. Upon this evidence the court held, that there was no error in a charge which instructed the jury that if defendant’s agent wrote the application and did so in- such form as to include the planing mill, and such was the intention of the plaintiff, Robertson, and the agent, then the defendant was liable for the insurance on the machinery including the planing mill.
For the same reason, there was no error in allowing tlie witness, against the" objection of defendant, to an-SAver' in the affirmative, the question,' “Whether or not you and- the said Joseph Minchener, Jr., as the agent of defendant, then and there agreed upon and contracted for a |400 policy on said building and appurtenances, which policy Aras to run and be in force for three years from that date, and which Avas to be issued to you. in said company, and Avhich was subsequently issued to you, and AAdiich is the policy sued on in this case?”
There was no conflict in the evidence and it wms conceded that there Avas no controversy as to the right of the plaintiff to recover, if he Avas allowed to shoAV that the Williams house was the one intended by him and defendant’s agent to be insured.
The judgment beloAV must be affirmed.