Appeal
from city court of Talladega; John W. Bishop, Judge.
Action
by the Long Clothing & Shoe Company against the Alabama State
Mutual Assurance Company on an insurance policy. From a
judgment in favor of plaintiff, defendant appeals. Reversed.
The
defendant pleaded the general issue, and by the second
special plea it set up the violation of a contract of
insurance, in that, contrary to the stipulations of said
contract, the plaintiff obtained additional insurance upon
the goods alleged to have been damaged, without giving notice
to, and obtaining the written consent of, the defendant. To
this second special plea the plaintiff filed nine
replications. Demurrers were sustained to the sixth and
eighth, and it is therefore unnecessary to set them out at
length. The first replication averred that the allegations
contained in said second plea were not true. The remaining
replications were as follows: "Second. Before such loss
occurred, notice of such additional insurance was given to
the defendant, and no objection was made thereto by said
defendant prior to such loss; and the defendant had a
reasonable time after such notice, and before such loss
within which to make such objection. Third. Before such loss
notice of such additional insurance was given the defendant
by the plaintiff, and the said defendant made no objection or
dissent thereto, and did not cancel the said policy, and did
not return the unearned premium thereof; and the defendant
had a reasonable time in which to make such objection and
dissent, to cancel said policy, and return said unearned
premium, after such notice was given, and before such loss
occurred. Fourth. Before such loss occurred, the defendant
with notice of such additional insurance, waived the grounds
set up in its second plea, by failing to make objection
within a reasonable time to such additional insurance; and
the defendant had a reasonable time in which to make such
objection after such notice had, and before such loss
occurred. Fifth. Before such loss occurred, the defendant
with notice of such additional insurance, waived the grounds
set up in its second plea, by failing to make objection to
or to dissent from, such additional insurance, and by failing
to cancel said policy and to repay to plaintiff the unearned
premium thereon; and the defendant had reasonable time within
which to make such objection and dissent, cancellation and
repayment, after notice had, and before such loss
occurred." "Seventh. Said additional insurance was
effected by M. G. McCargo, then and there the agent of the
defendant; and the defendant did not express disapproval as
to such additional insurance, and made no objection
thereto." "Ninth. Heretofore, on, to wit, the 12th
day of May, 1897, one M. G. McCargo, with an office in the
city of Talladega, Talladega county, Alabama, was engaged in
business as a general insurance agent. The said defendant
knowing the said McCargo to be engaged in such business,
selected him as its agent in the said city of Talladega to
transact business for it, and the said McCargo from a time
anterior to the said 12th day of May, 1897, until after, to
wit, the 28th day of September, 1897, continuously, continued
to act, and was held out to the general public by the said
defendant, as its agent in the said city of Talladega; and as
such agent the said McCargo received from the plaintiff a
premium of, to wit, $10 (ten dollars), and delivered to it
the policy sued on in this case. Afterwards, on, to wit, the
2d day of July, 1897, the plaintiff applied to the said
McCargo, doing such general insurance business, for
additional insurance, and the said McCargo then and there
agreed with the plaintiff to effect for it such additional
insurance, whereupon, said McCargo, who still continued as
aforesaid to be the agent of the said defendant, and who was
also at the same time the agent of, to wit, the Southern
Mutual Fire Insurance Company of Alabama, as such agent
agreed and contracted with the plaintiff for the additional
insurance in the sum of, to wit, one thousand dollars
($1,000), and thereupon issued to the plaintiff a policy on
the said property in the said Southern Mutual Fire Insurance
Company of Alabama for the said additional amount of one
thousand dollars; and in the said policy to the said
last-named company he, said McCargo, inserted a clause in
words and figures as follows, to wit: '$1,000 additional
insurance permitted, warranted to be concurrent
herewith.' And by the same he intended to refer and did
refer to the policy of insurance sued on in this case, which
said additional insurance policy so issued is the additional
insurance complained of in said defendant's second plea.
Afterwards, on, to wit, the 20th day of September, 1897, the
plaintiff suffered the loss sued on in this case, and after
the said loss the said defendant, with notice of the said
additional insurance, and with notice that the insurer
thereof was on the point of sending, or had sent, an adjuster
or inspector to the place of loss, to wit, in the city of
Talladega, sent its adjuster, to wit, A. H. Borders, to visit
and inspect the said loss contemporaneously with the
inspection of the said loss by the adjuster of the said
Southern Mutual Fire Insurance Company of Alabama; and the
said defendant, by and through its said inspector, after the
said loss and damage, on, to wit, the 21st day of September,
1897, visited the said loss and inspected the same as
aforesaid. And plaintiff further avers that the said
defendant continued to retain, and still retains, the said
premium for the said policy sued on in this case." To
the second replication the defendant demurred upon the
following grounds: "(1) For that said replication is no
answer to the plea. (2) For that said replication does not
traverse any material allegation in said plea, nor confess
and avoid the same. (3) For that said replication admits the
forfeiture averred in the plea, and shows no waiver thereof
by the defendant. (4) For that the forfeiture averred in the
plea is confessed by the replication, and the defendant was
not required by any stipulations contained in the conditions
of the policy set forth in the plea or the replications to
make any objections to the forfeiture, and the failure to
make such objection is not a waiver thereof. (5) The
defendant was not required to make any objection to the
additional insurance after notice thereof, and the failure so
to do is not a waiver of the forfeiture averred in the plea
and admitted in the replication." To the third
replication the defendant demurred upon the grounds of
demurrer interposed to the second replication, and upon the
following ground: "(6) For that under the facts alleged
in said replication the defendant was under no obligation to
return the unearned premium of said policy of insurance, and
the failure to do so is not a waiver of the forfeiture of the
policy." To the fourth and fifth replications the
defendant demurred upon the same grounds as were interposed
to the third replication. To the seventh replication the
defendant demurred upon the grounds interposed to the third
replication, and upon the following additional grounds:
"(7) The facts averred in said seventh replication to
second plea show that, in the matter of the issuing the
additional policy of insurance therein mentioned, said M. G.
McCargo was acting, not as the agent of this defendant, but
as the agent of the company by which such additional policy
of insurance was issued. (8) For that notice or information
received by said M. G. McCargo in the manner stated in said
replication, and at the time therein mentioned, is no notice
to the defendant, for that it appears that said M. G. McCargo
was then acting as agent of, and on behalf of, another
company. (9) For that the alleged understanding and agreement
between said M. G. McCargo and the plaintiff that the policy
herein sued on was to be and remain in full force and effect
is not an agreement binding upon this defendant, nor one
which operates as the waiver of the forfeiture averred in the
plea. (10) For that it does not appear that the alleged
notice of the additional policy of insurance was given to the
secretary of the defendant, and that his consent was obtained
thereto in writing. (11) For that it is not averred that the
alleged understanding or agreement with plaintiff that the
policy herein sued on was to be and remain in full force and
effect was made by any officer or agent of the defendant
having authority to bind it in the premises. (12) That the
alleged reference in the additional policy of insurance
mentioned to the policy of insurance sued on in this case is
in no sense...