Hartford Fire Ins. Co. v. Ingram

• Decision Date: 24 March 1927
• Docket Number: 5 Div. 970
• Parties: HARTFORD FIRE INS. CO. v. INGRAM.
• Court: Alabama Supreme Court

112 So. 424

216 Ala. 111

HARTFORD FIRE INS. CO. v. INGRAM.

5 Div. 970

Supreme Court of Alabama

March 24, 1927

Rehearing Granted April 21, 1927

Appeal from Circuit Court, Elmore County; R.T. Goodwyn, Special Judge.

Action on promissory note by the Hartford Fire Insurance Company against E.D. Ingram. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded on rehearing.

Holley & Milner, of Wetumpka, for appellant.

P.K Shirley, of Wetumpka, for appellee.

THOMAS J.

Plaintiff declared on notes for insurance premium, and defendant answered with no consideration, non est factum, fraud in procurement of notes, and set-off; issue was joined on these pleas.

Plaintiff's agent testified that defendant signed the notes in his presence, gave check for first installment; that the policy was not delivered by him to defendant; that such policy was issued and witness saw it several days later in the office of the agent of the company in Montgomery, and did not know of his own knowledge whether defendant received the policy. The amount of reasonable attorney's fee was fixed, the notes and the application for insurance offered in evidence, and plaintiff rested.

Defendant testified in his own behalf that he was in the garage business; that he had a transaction in his place with Hicks who requested him to come and sign an application for insurance; that he had been frequently importuned by Hicks to take out insurance; that he finally agreed to take insurance for one year; that he was busy when Hicks requested that he sign the application, he did so without consideration of the contents of the paper, and gave him a check for $32.16 as premium; that he had never received any policy of insurance that his first information of the notes was when asked for payment; and that he could read and write; that all the papers signed were without reading and signed at one time.

A witness, Gresham, said he heard the defendant say he only wanted one year's insurance; that the agent of the insurance company replied he would not insure "for but one year," and called the defendant "to the desk to sign an application or whatever it was."

The signature of the notes was identified as that of the defendant by witness Weldon. Hicks being recalled, stated that he informed the defendant he was writing five years' insurance, and the Montgomery agent of plaintiff testified that the policy issued was duly mailed to defendant in a properly stamped envelope with his return address and the same was not returned by postal authorities as undelivered.

There was no error in overruling demurrers to pleas B and C. The facts tending to show the fraudulent misrepresentations and failure of consideration complained of were sufficiently stated. McAfee v. Glen Mary Coal & Coke Co., 97 Ala. 709, 11 So. 881; Carmelich v. Mims, 88 Ala. 335, 6 So. 913; Phoenix Ins. Co. v. Moog, 78 Ala. 284, 56 Am.Rep. 31; Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897. Plea C sufficiently declared in set-off, and affirmative instruction was given defendant as to matters set up in that plea.

We have examined the several rulings on evidence, and they are free from error. It was competent for the witness to answer "What did Hicks say to that?" meaning by the context that the insurance would not be for a...