97 So. 790 | Ala. | 1923
Appellee was the mother of one Johnnie Roberts Brooks, who died on September 18, 1919, and this suit was brought to recover on a policy of insurance upon the life of her son in the appellant company. The company interposed the defense that no policy of insurance had been issued on the life of Johnnie Roberts Brooks, and this was a sharply contested issue of fact, submitted to the jury for their determination, resulting in a verdict for the plaintiff. From the judgment following, the defendant has prosecuted this appeal.
The plaintiff did not have the policy in her possession, but testifies that she gave this policy, with her receipts and receipt book, to one Mr. Brooks, agent of the defendant company, on Monday following the death of her boy, on Thursday preceding; the agent stating, as she testifies, that he would return the policy in a few days and pay it. This the agent denied. The plaintiff further testified that thereafter some "white gentlemen" came to her house, and insisted that they were superintendents of the American National Insurance Company of Galveston, Tex. They were unknown to the plaintiff. Counsel for plaintiff then asked her the following question: "What did they say?" The defendant objected, upon the ground there had been no independent proof that these parties were the agents of the defendant, and the relation of agency had not been established by any evidence, other than the declaration of the alleged agent. The objection was overruled, and the exception duly reserved. The witness answered the question as follows:
"They said they came out to pay me off, and I told them I was ready, and they said they wanted to tell me how they were going to pay me off, and I says, 'Yes, sir;' and they says, 'We are going to mark up all your policies paid up for ten years, and then you won't have any more trouble;' and I says, 'I didn't make that contract with you gentlemen, and I am not going to accept it, if I don't never get anything.' "
The defendant moved to exclude the foregoing answer on the same ground as addressed to the question, and duly reserved an exception to the action of the court in overruling said motion to exclude. The assignment of error relating to the foregoing ruling presents the important question upon this appeal, and we are of the opinion the court erred in admitting this proof.
"The rule is well settled that the declarations or conduct of one professing to act as the agent of another cannot be received as evidence against the principal without independent proof of his authority." Postal v. Lenoir,
Counsel for appellee, in answer to this assignment of error, direct attention to those authorities wherein it is held that where the fact of agency rests in parol, and is a matter of dispute, it is a question of fact to be determined by the jury from the evidence, and that whatever evidence tends to prove the agency is admissible. Robinson Co. v. Greene,
We are of the opinion the policy upon the life of Johnnie Roberts Brooks in the sum of $212, purporting to have been issued by the defendant company, was properly admitted in evidence. The testimony for the defendant was to the effect that the company had issued no policy on the life of this boy of any character or in any sum, and in view of the issue of fact presented in this cause we think this policy was properly admitted by way of contradiction of the witnesses for the defendant.
For the error indicated, let the judgment be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.
