128 So. 436 | Ala. | 1930
The action is upon a policy of fire insurance. By special pleas 2, 3, 4, and 5 defendant insurance company set up the fact, to state the pleas in summary fashion, that plaintiff insured was not at the time of his application for insurance and the issuance of the policy the sole owner of the property insured, thus avoiding the policy because the interest of the insured in the property was not truly stated therein. The statement of the case reproduces plaintiff's special replication. We note for special attention the allegation that "C. L. Mullin and Company were the agents of the defendant and that they as such agents countersigned said policy of insurance and issued it or procured its issuance to plaintiff," and "with full knowledge of the true condition of plaintiff's possession, ownership, and title the said C. L. Mullin and Company issued to plaintiff the said policy of insurance sued upon, accepted the premium thereupon and delivered the same to plaintiff." The court sustained defendant's demurrer to this replication, and that ruling presents what appears to be the controlling question on this appeal.
The inference to be drawn from the record and the briefs of the respective parties is that the replication in question was considered to be defective for that it failed to show the agent's authority to waive the stipulation as to plaintiff's title.
Bearing in mind the nature and purport of the act of the agent considered by the court in Hanover Fire Ins. Co. v. Wood,
The demurrer to the replication should have been overruled.
Reversed and remanded.
THOMAS, BROWN, and FOSTER, JJ., concur.