104 Ala. 176 | Ala. | 1893
The first and third assignments of error raise the same question ; first, on the admission of evidence, and, second, on a motion to exclude it, based on the same grounds of objection. Dean & Co., of Eufaula, were the agents of the company which issued this policy. The plaintiff knew them, and never had any communication with the home office, so far as appears, in
We have, then, evidence on the part of the plaintiff, tending to show that Dean & Co. were the general agents of the defendant,especially so far as appearances indicated, and on the part of the defendant, that they were special agents with special instructions, limiting their powers. Now, a special agent has no right, even as to third per
And again it has been said : ‘ ‘ The powers of the agent
There was no error in admitting the evidence of the witness Harrison, and in refusing to exclude it. If Dean & Co. were the general agents of defendant, a question properly for the determination of the jury, under instructions, this was competent evidence of a waiver of the proof of loss. The objections to the evidence wrere specific, and not one was based on any alleged ground of irrelevancy, or that there was a variance in the proof offered and the allegations of the replication.
May lays down the proposition, supported,by a vast array of authorities, sanctioned expressly by this court, that “It has been very generally held, that knowledge by, or notice to the agent, of the inaccuracy of a statement in the application upon which a policy is issued after such notice or knowledge, binds the company, and prevents them from availing themselves of the inaccuracy in defense ; some of the cases regarding the facts as amounting to- a waiver, and others as working an estoppel in pais. And this is true, even though the policy provides that when the application is made through an agent of the company, the applicant shall be responsible for such agents’ representatives.” — 1 May on Ins., §§ 143, 144, 144c.; Wood on Fire Ins., § 152; Western Ass. Co. v. Stoddard, 88 Ala. 611; Phoenix Ins. Co. v. Copeland, 90 Ala. 386; Com. Fire Ins. Co. v. Allen, 80 Ala. 571; Merchants Ins. Co. v. Thurston, 93 Ala. 256; Planters’ Ins. Co. v. Myers, 55 Miss. 480.
The remaining charges, 3, 4, 5, and 6, each, ignore the facts relied on in the replications to the pleas of the defendant, on which issue was joined, and which there was evidence tending to establish. — Liberty Ins. Co. v. Boulden, 96 Ala. 508; Western Ass. Co. v. Stoddard, 88 Ala. 611; Piedmont & Arlington Ins. Co. v. Young, 58 Ala. 486; Queen Ins. Co. v. Young, 86 Ala. 431; P. & M. Ins. Co. v Thurston, 93 Ala. 257; Planters’ Ins. Co. v. Myers, 55 Miss. 479.
Affirmed.