Cassimus Bros. v. Scottish Union & National Insurance

| Ala. | Nov 15, 1902

DOWDELL, J.

-This was an action on an insurance policy, the complaint being in Code form. Three pleas Avere filed, the first being the general issue, which was subsequently withdraAvn, the other two being special pleas. Demurrers were interposed to the special pleas and were overruled. Beplications numbering from one lo seventeen Avere then filed to the pleas, which were demurred to, and the demurrers sustained, except as to the 16th replication, which replication, however, was subsequently withdraAvn, after the withdrawal of the plea of the general issue. Upon the sustaining of the demurrers to the replications, and after AvithdraAval of plea 1, and replication numbered 16, the plaintiff de- clining to further plead, judgment Avas rendered for the defendant. From this judgment the present appeal is prosecuted. The assignments of error relate to the rul- ings of the court on the demurrers to the pleas and replications and the final judgment rendered. By express

By Expresstipulations in the policy, the facts aver- red and set up as defensive matter in each of the two special pleas, were such as constituted a breach of the contract sued on, and authorizing a claim of forfeiture of the policy, unless there had been a waiver by the de- fendant of the matter relied on in defense, and such waiver would be matter for special replication. Each of the pleas sufficiently averred knowledge by the plain- tiff of the facts relied on. The second plea, also, avers that the hazard was increased by means within the con- trol of the plaintiff, and sufficiently described the haz- ard, that is, in Avhat is consisted. Both pleas negatived any consent by the defendant, within the terms of the policy, to the doing of the things set up as a defense. The pleas on the grounds assigned, were not open to the demurrers, and the court properly overruled the same. The fact

The factthat the defendant upon the receipt of no- tice and proof of loss denied any liability under the policy, and stating at the timel wherein its conditions its conditions had been violated in only one particular., did not, prevent it from afterwards settling up- in defense other and different breaches of the conditions of the policy, when it is not shown that the plaintiff was misled to his injury by the claim of non-liability on the particular ground stated. This is what was attempted by replication numbered 1, and on this ground, if for no other, the demurrer was properly sustained.

Replication numbered 2, does not deny any matter stated in the pleas, but sets up what was evidently intended as an estoppel, the expression of opinion of the agent as to what the words, “usually carried in similar stocks,” as contained in the policy, meant. It is not claimed that the plaintiff was ignorant or that he could not read and understand, or that he was deceived or misled by the agent as to any fact, but that the agent merely gave hint an opinion as to the meaning of a clause in the policy. The meaning of these words was equally ojien to the plaintiff and the agent of the defendant, and not being a representation of any fact whereby the plaintiff was misled, the plaintiff cannot claim any benefit from such opinion of the agent.—Upton v. Tribilock, 91 U. S. 50; Georgia Home Ins. Co. v. Warten, 113 Ala. 479" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/georgia-home-insurance-v-warten-6516985?utm_source=webapp" opinion_id="6516985">113 Ala. 479; 1 Wharton on Contracts, § 198.

Replication numbered 3, while it avers that gasoline is usually kept in stock, in the class of goods enumerated in the policy, does not aver that the gasoline was so kept as a part of the stock, and in this respect was subject to the demurrer: It was likewise, for other reasons above stated as to the second replication, bad.

Notice to the agent who solicited the insurance, subsequent to the issuance, of the policy, that gasoline was kept on the premises by the plaintiff did not operate as notice to the defendant, and therefore constituted no waiver of the forfeiture.—Young v. Queen Ins. Co., 86 Ala. 431. The demurrer was, therefore, properly sustained io replication numbered 4.

The 5th and 6th replications are substantially the same.as to the facts stated. In the former an estoppel is set up on the facts pleaded, while in the latter, a waiver by the defendant of the forfeiture is claimed. Oil the sume statement of facts, this constitutes no material difference in the two replications. The doctrine of waiver, however, is not necessarily predicated upon an estoppel. While an estoppel carries with it- a waiver, tht> latter may, however, arise, where strictly speaking-on tiie same state of facts, an estoppel would not. The arm ments in these two replications, 5 and 6, g'o further than tin* averments in replications 2 and 3, which we have said show merely an expression of opinion by the ageni. it is averred in 5 and 6, that the insured at the time of the issuance of the policy notified the agent who issued the policy, that he, the insured, was then keeping and intended to keep in his stock, gasoline, and with this knowledge the agent issued the policy and told the insured that it would be all right for him to keep gasoline. Notice to the agent under these circumstances was equivalent to notice to the defendant company. With a knowledge of the facts averred in these replications, an issuance of the policy and an acceptance of the premium was clearly a waiver of the right of the defendant to claim a forfeiture of the policy for the keeping of the gasoline.—Indemnity Co. v. Williams, 121 Ala. 142; Syndicate Ins. Co. v. Catchings, 104 Ala. 176" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/syndicate-insurance-v-catchings-6515795?utm_source=webapp" opinion_id="6515795">104 Ala. 176; May on Insurance, § 132.

The facts stated in replications 7 and 8 are not sufficient to constitute an estoppel — it is not claimed that the gasoline was kept as a part of the stock.

There is no averment in the 9th replication that John F. Gay, as agent of the defendant, had authority after tin1 issuance of the policy to receive notice that would bind the defendant, that the plaintiff was keeping gasoline1 on the premises. The facts stated as to his agency and its scope constituted him nothing more than a soliciting agent, and as such, under the authority of Young v. Queen Ins. Co., supra, notice to him of matters occurring subsequent, to the issuance of the. policy, would not be notice to the company.

The waiver pleaded in replications 10 and 11, is stated as the mere conclusion of the pleader. No facts are stated upon which to ' rest this conclusion. For this reason, .if no other, the demurrer interposed was properly sustained.

The stipulations in the policy against the increase of hazard are provisions inserted in the contract for the benefit of the insurer, and it is a well settled principle of law, that such provisions may be waived by the acts and conduct of the insurer. By replications 12, 13, 14 and 15, this principle is invoked. These replications are substantial copies of replications two, three, four and five, which were passed upon by this court and pronounced good and not open to demurrer in the case of Ala. State Mutual Ins. Co. v. Long Clothing & Shoe Co., 123 Ala. 667" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/alabama-state-mutual-assurance-co-v-long-clothing--shoe-co-6518298?utm_source=webapp" opinion_id="6518298">123 Ala. 667. It is not necessary to repeat here what was there said as to the sufficiency of these replications. The court below erred in sustaining demurrers to replications 12, 13, 14 and 15.

There was no error in sustaining the demurrer to the 17th replication. It is not averred that the agent, John F. Gay, had authority to consent to the keeping of gasoline by the plaintiff, and the facts stated do not in themselves show that he had authority.

For the errors pointed out the judgment will be reversed and the cause remanded.