Brooks v. Continental Ins. Co.
Decision Date | 10 April 1900 |
Parties | BROOKS v. CONTINENTAL INS. CO. |
Court | Alabama Supreme Court |
Appeal from circuit court, Pike county; John P. Hubbard, Judge.
Action by M. M. Brooks against the Continental Insurance Company. From an order granting defendant's motion to strike plaintiff's replication, he appeals. Reversed.
Foster Samford & Carroll and R. L. Harmon, for appellant.
Carmichael & Brannen, for appellee.
This is an action by Brooks on a policy of fire insurance issued to him by the Continental Insurance Company. The defendant pleaded that, under and by the terms of said policy, it was to become and be void in the event change, other than by death of the insured, should take place in the interest title, or possession of the insured in the subject of the insurance, unless such change should be provided for by agreement indorsed on the policy or added thereto; that said conditions had been violated in this: that after the policy went into effect, and before the property insured was destroyed by fire, the insured sold, and delivered possession of, the property to Fox Henderson for the sum of about $2,500, of which purchaser had paid before the fire something over $1,500; that said Henderson was in possession of the property at the time it was burned, though no conveyance had been executed to him; and that this change in the insured's interest and possession had not been provided for by agreement entered upon the policy. There were several pleas setting up the foregoing facts in one form or another. To them plaintiff interposed several special replications each and all of which set up the following facts, which we set down here as they are stated in the brief of appellant's counsel: "That, prior to the loss complained of in the complaint, F. M. Pennington was the general agent of the defendant for this vicinity, with authority from defendant to write insurance, collect premiums, and to act generally as its agent for such purposes, and for the purpose of making insurance contracts for the defendant, and was the agent of the defendant, who executed the contract sued upon on behalf of the defendant he was supplied with blank policies signed by the president and secretary of the defendant, to be binding on the defendant when countersigned by him, said Pennington; that the policy sued on was one of the policies so issued to said Pennington by the defendant, and was drawn up and became binding upon the defendant upon its having been countersigned by said Pennington; and plaintiff alleged that prior to the loss complained of said Pennington was informed of the change in plaintiff's interest and possession in and of the property insured alleged in the pleas, and that he agreed and consented thereto; and plaintiff further alleged that, at the time Pennington so agreed and consented to said change plaintiff had no notice or knowledge or information but that Pennington had full authority, as such agent of the defendant, as he had had at the time of the issuance of said policy; and plaintiff further averred that there was at the time of the fire, and at the time of replications filed, more than $900 of the purchase money due plaintiff and unpaid on said property, and that he has never parted with the legal title to said property." The foregoing facts were alleged in replications 2, 3, 4, and "a." Replication 1 was a mere joinder in issue on the pleas. Defendant moved the court to strike replications 2, 3, 4, and "a" to pleas 5, 6, 7, 8, 9, and 10 on the following grounds: "(1) Because plaintiff's first replication is a joinder of issue on the said several pleas; (2) because the matters and things set up in said replications constitute no answer to the matters and things alleged in said pleas; (3) because the...
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Mindler v. Crocker
... ... in the matter of substance, the question should be raised by ... demurrer. Brooks v. Continental Ins. Co., 125 Ala ... 615, 29 So. 13; Bennett v. Bennett, 224 Ala. 335, ... 336, ... ...
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... ... This ... objection was proper to be taken by demurrer ( Brooks v ... Continental Ins. Co., 125 Ala. 615, 29 So. 13); but, ... since substantially the same ... ...
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... ... pointed out by an amendment of its pleas. Brooks v ... Continental Ins. Co., 125 Ala. 615, 29 So. 13; ... Troy Fertilizer Co. v. State, 134 ... ...
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...29 So. 13; Powell v. Crawford, 110 Ala. 294, 18 So. 302; Lindsey v. Morris, 100 Ala. 550, 13 So. 619. The rule laid down in the Case of Brooks, supra, seems to correct, and that is "that when a pleading, though not frivolous, unnecessarily prolix, or irrelevant, is supposed to be substantia......