Traders' Insurance v. Letcher

143 Ala. 400 | Ala. | 1904

TYSON, J.

Action on policy of fire insurance.

The property covered by the policy, which was destroyed, was household and kitchen furniture. The third plea of defendant, which sought to set up as a defense a certain term of the policy, failed to aver that plaintiff was under any duty to comply with it and for this reason, if for no other, was subject to the demurrer interposed to it. But aside from this, we feel no hesitancy in holding that the clause of the policy recited in this plea, was not intended to impose, and did not impose, any obligation upon the insured with respect to the property covered by the policy.

The cases relied upon by appellant as sustaining the reasonableness and validity of the clause requiring the production of books of account, etc., by the insured, involved losses covering stocks of merchandise kept by the insured for sale, and, therefore, have no application to this case.

To the second plea, the plaintiff filed eight special replications attempting to set up a waiver by defendant of the stipulation relied upon in the plea as a defense. The third, fourth, fifth and sixth of these replications are copies of those held sufficient in Ala. State M. A. Co. v. Long C. & S. Co., 123 Ala. 667. There was no error in overruling the demurrer to each of them.

Manifestly, to bind defendant by a waiver of the stipulation, it is necessary io> trace knowledge to it of the fact that the second policy had been procured by plaintiff, and that, after knowledge of that fact, its conduct has been such as to reasonably imply a purpose on its part not to insist upon a forfeiture (Ala. State M. A. Co, v. Long, supra), in the absence of an agreement to that effect. — Central Fire Insur. Co. v. Brooks, 131 Ala. 614.

The first and second of these replications seek to invoke the principle o-f waiver, not upon an agreement, but upon the one first pointed out above. It is not averred in either of them that Saffold was acting for and in behalf of defendant as its agent in procuring the additional insurance for plaintiff. Non constat, he represented the plaintiff in procuring the second policy, or the London Insurance Company that issued it. If he was defendant’s agent at the time the second policy was issued, the acquisition of the knowledge of its issuance, while acting for plaintiff or the London Company, would not be the knowledge of the defendant company, since it was not acquired by him while transacting the business of defendant as its agent. Central of Ga. Cy. v. Joseph, 125 Ala. 313, 319 and cases there cited. The demurrers to these replications should have been sustained.

It is undoubtedly true that, if Saffold ivas the general agent of defendant with authority to waive the stipulation in the policy alleged in the plea, and after his agency had terminated he made an agreement with plaintiff by which the stipulation was waived, and she had no notice of the fact of the termination of his agency, that the defendant would be bound by his agreement with her. This was the principle asserted and applied in the case of Continental Insurance Co. v. Brooks, supra, which is founded on the familiar doctrine there expressed that “Where third parties have dealt with an agent clothed with general powers, the agency continues as to them, after revocation, until they have notice thereof.” In such case the party dealing with the agent is not bound to inquire into his authority to bind his former principal, and in the absence of notice of his right to represent his former principal may assume that he has such authority.

The replication in the case last cited, after averring that Pennington was the general agent of the company with authority to waive the stipulation set up in the pleas, alleged that being such agent he was informed of the matters and things contained in said pleas of defendant and agreed and consented thereto.

The seventh replication, as amended, doubtless was intended to assert this defense. While it is perhaps defective in failing to aver with distinctness and certainty an agreement between Saffolcl as agent and plaintiff, it was not subject to any one of the -assignments of the demurrer interposed to it.

The eighth replication is clearly had. It is wholly insufficient in its averments to show a waiver by defendant under either of the principles declared above. The second and third rejoinders by defendant, to which a demurrer ivas sustained, were clearly no answer to the 3rd, 4th, 5th and 6th replications. It is unnecessary to consider the special rejoinders to the 8th replication since that replication has been held to be had.

Reversed and remanded.

McClellan, O. J., Dowdell and Denson, J.J., concurring.