65 So. 536 | Ala. | 1914
Suit by appellant against appellee, substantially in Code form, on a policy of fire insurance is
Demurrer to the replication numbered 7 ivas sustained. No argument is made in behalf of this ruling, and no reason occurs to us why this replication Avas not a good reply to plea 4. A refusal to pay made in the circumstances alleged in this replication, though no reason therefor be assigned, amounts to a waiver of the notice and proof of loss.—Firemen’s Ins. Co. v. Chandall, 33 Ala. 9; 4 Cooley’s Briefs, 3535.
Defendant’s objection was sustained Avhen plaintiff, to support the averments of replications 7 and 9, pro
Where a plaintiff replies to a special plea in confession and avoidance by a special replication in confession and avoidance without denying the facts of the plea, the defendant is not required to offer evidence in support of the plea; but where plaintiff takes issue upon the plea by the general replication, as did plaintiff in this case, and replies at the same time by a special replication in confession and avoidance, as he may do and as plaintiff did in this case, the burden of proving the plea remains with defendant, and until some evidence is offered in its support the issue tendered by the special replication is immaterial. This is the clear result of our cases.—Lee v. DeBardelaben Co., 102 Ala. 628, 15 South. 270; Lucas v. Stonewall Ins. Co., 139 Ala. 487, 36 South. 40; Carroll v. Warren, 142 Ala. 397, 37 South. 687; Ferdon v. Dickens, 161 Ala. 181, 49 South. 888.
As to the evidence: It appeared without dispute that shortly after plaintiff’s property was destroyed, after
Defendant’s mere investigation of the loss on its own account and for its own satisfaction, without more, would not constitute a waiver of plaintiff’s breach of the stipulation for a sxvorn statement of the circumstances of the loss to be made by plaintiff. And it may be assumed that this agent’s express authority was limited to the mere making of an investigation and a report of the result. But plaintiff had no notice of that limitation, and this agent’s authority as to third persons was governed by the nature of the business intrusted to him. His acts, within the usual scope of the business intrusted in such agents, provided plaintiff acted in good faith and was not guilty of negligence, bound his principal despite his private instructions, for the authority of an agent, as to those with whom he deals, is what it reasonably appears to be.—Syndicate Insur
“If the company investigates the loss on its own account,- and so conducts itself with relation thereto as to show a satisfaction with the knowledge thus obtained, or to induce reasonable belief in insured that it is so satisfied, and does not desire formal notice or proofs, it will amount to a waiver of such formalities.”—Volume 4, p. 3526.
The case in favor of waiver here is made stronger by proof of the agent’s express denial under the circumstances we have stated above. We hold, therefore, that plaintiff should have had an answer to his question con
Other issues were litigated at the trial, but this appeal turns upon the points of which we have written. Without undertaking to pass upon the general merit of plaintiff’s case, that being a question proper for submission to a jury, in the first place at least, as involving-conflicting tendencies of the evidence, bur conclusion is that there must be a reversal for another trial.
Reversed and remanded.