Brooks v. Continental Ins. Co.

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, C.J.
• Citation: 29 So. 13,125 Ala. 615
• Parties: BROOKS v. CONTINENTAL INS. CO.
• Decision Date: 10 April 1900

29 So. 13

125 Ala. 615

BROOKS
v.
CONTINENTAL INS. CO.

Supreme Court of Alabama

April 10, 1900

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.

McCLELLAN, C.J.

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...