68 So. 254 | Ala. | 1914
The suit was for the amount of two notes given by appellees to appellant for a policy of fire insurance, which was to be issued and delivered to appellees,' insuring their dwelling, barns, and certain personal property therein. The first ten assignments of error were for the refusal of the court to admit evidence sought to be introduced by the appellant.
(1) The test of relevancy is the tendency to prove the issues presented by the pleadings; its sufficiency being a question for the jury under proper instructions
The notes sued on were given as the consideration for an insurance policy to be issued by appellant and delivered to appellees within a. few days from the date of the application. The several pleas deny that such policy was delivered to them within the time agreed upon, or delivered to them at all. Was there an actual delivery of the policy to the insured within the agreed time? If not, there was no error of the court in sustaining objection to the several question set out in the assignments of error from 1 to 10, inclusive.
(2) Whether or not a policy was delivered after its issuance, depends upon the intention of the parties as shown by their acts or agreements. Whatever the conduct or agreement of the parties shows, was to have amounted to a delivery will control. — 11 Am. & Eng. Ency. Law (1st Ed.), 285; Home Ins. Co. v. Adler, 71 Ala. 516, 526; Phoenix, etc., Co. v. McAuthor, 116 Ala. 659, 660, 22 South. 903, 67 Am. St. Rep. 154.
(3) The general rule, in the absence of a special contract to the contrary, is that, the policy is considered delivered to the insured 'when it is delivered by the company to the agent. This delivery is sufficient to put the insurance into effect, though the agent may retain the policy in his oaaui keeping. — Cooley’s Briefs, 442-449; Stephenson v. Allison, 165 Ala. 238, 51 South. 622, 138 Am. St. Rep. 26.
(4) Chief Justice McClellan, in Triple Link Mut. Ind. Ass’n v. Williams, 121 Ala. 138, 26 South. 19, 77 Am. St. Rep. 34, declared that a policy of insurance is delivered to the insured Avhen it is put in the mail, duly
The pleas, however, allege a special agreement with the agent by the insured that the policy shoud be delivered to the insured within a few days of the making of the application for insurance. At most, this would give the company a reasonable time to issue, and immediately actually deliver, the policy to the insured. The defendants’ evidence ivas positive of the nondelivery of the policy; the plaintiffs showed only that the policy Avas issued, and returned to the appellant’s agent “in ten days,’ and that he “mailed it out immediately to D. B. Stewart,” and “did not hear another word from it.” This testimony is far short of what is required to constitute a delivery by mail.
The question, “Did you have a return card on the envelope Avlien you mailed it?” if ansAvered in the affirmative, Avould still not tend to show a delivery, in the absence of evidence showing that it Avas stamped and properly addressed to appellees at their proper post office or residence. The evidence failed to show such a delivery of the policy within the reasonable time for delivery agreed upon by the parties. The several questions sought to- be propounded by appellant to its witness would not tend to shoAV such delivery of the policy within the time fixed by the contracting parties, and objections thereto were properly sustained by the court.
No error Avas committted by the court in giving, at the request of appellees, Avritten charge numbered 1.
Affirmed.