Inter-Ocean Ins. Co. v. Richardson
| Decision Date | 03 October 1950 |
| Docket Number | 3 Div. 910,INTER-OCEAN |
| Citation | 35 Ala.App. 462,48 So.2d 60 |
| Parties | INS. CO., Inc. v. RICHARDSON. |
| Court | Alabama Court of Appeals |
Albert L. Roemer, of Montgomery, for appellant.
Burkett & Watson, of Montgomery, for appellee.
Plaintiff below worked as a file clerk in the State Department of Revenue. In attempting to pull open a heavy drawer in a filing cabinet she received a back injury, resulting in serious physical disability to an extent that her lower limbs became, and still were at the time of trial, almost totally paralyzed.
She entered suit on an accident and health policy she carried in the defendant company.
Her complaint contained three counts. The first count was for accidental injury with maximum benefits of $100.00 per month for 12 months. The second count was for illness, with maximum benefits of $100.00 per month for six months. The third count claimed for breach of contract.
The defendant plead in short by consent the general issue, with leave, etc.
The defendant also filed a plea of set-off and recoupment, alleging that at the time of the commencement of the action the plaintiff was indebted to the defendant in the sum of $540.00 for money paid to the plaintiff under the policy involved for a non-occupation injury, whereas the plaintiff had sustained an occupational injury not covered by the policy.
It appears that on 28 October 1947 plaintiff signed an application for the policy sued on, the application being taken by J. C. Fraser, 'Who writes under T. M. Brown.' The only questions asked on the application pertained to plaintiff's age, residence, sex, weight, height, earnings, employer, and beneficiary to be named. No question appears on the application relative to any other insurance carried by the applicant.
The plaintiff testified that: 'I told Mr. Fraser the day he took the application that I had an insurance policy that carried the same quarters as his policy and I was not interested in his policy.'
No evidence was presented by the defendant tending to contradict the above statement by the plaintiff.
The policy itself carried the following proviso:
Plaintiff's injury occurred on 21 May 1948. She signed form 507, 'Report of Accident,' apparently on 8 July 1948, in which report she stated that she had also made claim for disability on the Mutual Benefit Health and Accident Association. She also stated on this report that she wished three months advance premiums paid out of the claim.
On the same date the defendant issued to the plaintiff a check for $92.80, payable because of her claim, which necessarily was for the full benefit of $100.00 payable under the policy, less the three months advance premium of $7.20.
Mr. T. M. Brown testified that he was general agent for the defendant company, 'authorized to act for the company.'
Mr. Brown testified that the first check paid plaintiff contained an overpayment, as 'we failed to catch' she had insurance with another company, and that the overpayment in the first check was recouped in the next payment, which was in the amount of $20.00. Thereafter plaintiff was paid at the rate of $60.00 per month.
This figure was arrived at in the following manner, according to Mr. Brown:
The jury returned a verdict in favor of the plaintiff and assessed her damages at $360.00, which was the maximum amount due after allowance for the $540.00 already paid by the defendant insurance company, the court having instructed the jury that recovery could be had only up until the time of filing suit, or for nine months.
Defendant's motion for a new trial being denied, appeal was perfected to this court.
Appellant's counsel argues that: '(a) The Trial Court erred in refusing to grant the motion for a new trial in that the great preponderance of the evidence established the fact that the verdict of the jury was excessive, and that Standard Provision #17 of the policy was not considered.'
This contention is in our opinion without merit.
The uncontradicted evidence of the plaintiff shows that at the time the application for this policy was taken she informed Mr. John Fraser, who according to the application itself 'writes under T. M. Brown,' that she had other insurance covering the same 'quarters.' The application was nevertheless taken by Mr. Fraser. No evidence was presented by the defense tending to show any limitations on the authority of Mr. Fraser, 'who writes under T. M. Brown.' We must presume therefore that Mr. Fraser's acts and knowledge were the acts and knowledge of Mr. Brown. Mr. Brown was a general agent of the defendant company. Notice to a general agent, as distinguished from a mere soliciting or collecting agent, is imputable to the company. United States Health and Accident Ins. Co. v. Goin, 197 Ala. 584, 73 So. 117; Royal Ins. Co. v. Eggleston, 19 Ala.App. 638, 99 So. 828; Piedmont Fire Ins. Co. v. Tierce, 245 Ala. 415, 17 So.2d 133.
In Mabee v. Continental Casualty Co., 37 Idaho 667, 219 P. 598, 601, 37 A.L.R. 348, the Supreme Court of Idaho considered a question highly similar to the present one, except that the insured had in a written application stated that no other insurance was carried, though the applicant did inform one Hutchinson, apparently only a soliciting agent for the defendant insurance company, that he had other insurance. The policy carried a proration clause identical with clause 17 the present policy. The conclusions of the Idaho court on this point were as follows:
'The knowledge of Hutchinson and his act in procuring the false application were undoubtedly the knowledge and the act of the appellant, and the policy was therefore issued by the appellant in the face of knowledge on its part that Mabee carried other insurance. It is indeed not urged by appellant that knowledge on the part of Hutchinson was not knowledge on its part. The only specific objection made below to the introduction of this testimony was...
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