Yorkshire Ins. Co., Limited, of London v. Gazis

112 So. 154 | Ala. | 1927

General constructions of insurance law are established by the decisions, and do not differ as to fundamental requirements from other contracts. Liverpool London Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880; Sovereign Camp v. Adams,204 Ala. 667, 86 So. 737. And the "iron safe" and "double insurance" clauses were the subjects of Insurance Co. v. Williams, 200 Ala. 683, 77 So. 159; South. States F. I. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63; Hackett v. Cash, 196 Ala. 403,72 So. 52; Fidelity-Phœnix Co. v. Williams, 200 Ala. 678,77 So. 156; and the duty to produce books and inventories as stipulated was the subject of consideration in Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 96 So. 250; Chamberlain v. Shawnee Fire Ins. Co., 177 Ala. 516, 58 So. 267; Tedder v. Home Ins. Co., 212 Ala. 624, 103 So. 674.

The first count is in statutory form, and the second declared for the penalty under section 4594 of the Code, as amended by Gen. Acts of 1911, p. 316. The right of such penalty was upheld in South. States F. I Co. v. Kronenberg, 199 Ala. 164,74 So. 63; Insurance Co. v. Williams, 200 Ala. 681, 77 So. 159. The ruling on demurrer thereto was not erroneous.

Amended pleas 2 and A made a part thereof policy of insurance, which is set out in extenso. George v. Roberts,207 Ala. 191, 92 So. 1. The demurrers thereto were overruled; and pertinent questions are raised by the overruling of demurrers to replications Nos. 3 to 5, inclusive, as answers to pleas 2 and A. These pleadings are to be read and considered together. Liverpool London, etc., Co. v. McCree, 213 Ala. 534,105 So. 901. It is manifest that the alleged agreement set up in the replications was prior to, or contemporaneous with, the issue of the policy sued on, and no facts are averred to show the authority of such soliciting agent to waive or modify the contract provisions of the policy declared upon and contrary to its express terms. It is established that contract relations and duties of the respective parties, after a policy has been issued and delivered, cannot be changed or waived by a mere soliciting agent having only the authority to take applications for insurance and apparently acting for the company in a limited capacity. South. States F. I. Co. v. Kronenberg,199 Ala. 164, 74 So. 63.

This pleading (construed against the pleader) does not show that said agent of defendant that issued the policy was more than a local or special agent taking applications for insurance, delivering the usual form of policies, and collecting the premiums therefor, and having no authority to waive and estop; that is, that a local agent or agency acting within the usual line and scope of such authority and business could not waive express provisions of the policy or set up an estoppel against assertion of material contract stipulations. It is not sufficient to allege the agency to do the primary act merely. The waiver or estoppel must be charged directly upon the principal, or it must be alleged that the agent was authorized to bind the principal in the estoppel. Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 383,96 So. 250; South. States Fire Ins. Co. v. Kronenberg, 199 Ala. 164,74 So. 63; Ala., etc., Co. v. Long, 123 Ala. 667,26 So. 655; Prine v. Amer. Central Ins. Co., 171 Ala. 343, 54 So. 547; Insurance Co. v. Williams, 200 Ala. 681, 77 So. 159; Pacific Mut. Life Ins. Co. v. Hayes, 202 Ala. 450, 80 So. 834; Liverpool London Globe Ins. Co. v. McCree, 213 Ala. 534,105 So. 901.

There was error in overruling demurrers to replications 3, 4, and 5 to amended pleas 2 and A.

The action of the trial court in sustaining demurrers to defendant's pleas 4 and 5 are assigned as error. In plea 4 is set up the contract stipulations that —

"Warranty to keep books and inventories, and to produce them in case of loss — the following covenant and warranty is hereby made a part of this policy: 1st. The assured will take a complete itemized inventory of stock on hand at least once in each calendar month prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy, or this policy shall be null and void from such date, and upon demand of the assured the unearned premium from such date shall be returned. 2nd. The assured shall keep a set of books, which shall clearly and plainly present a complete record of business transacted, including all purchases, sales and shipments, both for cash and credit, from date of inventory, as provided for in first section of this clause, and during the continuance of this policy. 3rd. The assured will keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night, and at all times when the building mentioned in this policy is not actually open for business; or, failing in this, the assured will keep such books and inventories in some place not exposed to a fire which would destroy the aforesaid building. In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery hereon."

And in that plea it is averred:

"That plaintiff breached the foregoing covenants and conditions in said policy in the following particulars: (1) That he did not take a complete itemized inventory of the stock on hand as provided therein; (2) that the plaintiff did not keep said books and inventories securely locked in a fireproof safe at night and at other times as therein provided, nor did he keep said books and inventories in a place not exposed to a fire which would destroy the building where said business was carried on; (4) that the plaintiff failed to produce said books and inventories for the inspection of the defendant after said alleged loss as provided in said warranty. Wherefore said policy became and was null and void."

The plaintiff cannot escape his warranties to keep books and inventories as required, and produce the same in the event of loss, except on the waiver or estoppel of the principal or an authorized agent to that end having due authority to so bind the principal. Insurance Co. v. Williams, supra; South. States F. I. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63. The material failure in that behalf was sufficiently pleaded. Demurrer thereto should have been overruled to plea 4.

Some matters set up in plea 5 were by way of conclusion. Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933. Demurrer was properly sustained.

Reversed and remanded.

ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.