London & Lancashire Ins. Co. v. McWilliams

• Decision Date: 04 November 1926
• Docket Number: 2 Div. 884
• Citation: 215 Ala. 481,110 So. 909
• Court: Alabama Supreme Court
• Parties: LONDON & LANCASHIRE INS. CO., Limited, v. McWILLIAMS.

110 So. 909

215 Ala. 481

LONDON & LANCASHIRE INS. CO., Limited, v. McWILLIAMS.

2 Div. 884

Supreme Court of Alabama

November 4, 1926

Rehearing Denied Jan. 20, 1927

Appeal from Circuit Court, Wilcox County; S.F. Hobbs, Judge.

Action on a policy of fire insurance by J.M. McWilliams against the London & Lancashire Insurance Company, Limited. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Steiner Crum & Weil, of Montgomery, and Paul E. Jones, of Camden, for appellant.

Bonner & Miller, of Camden, for appellee.

SOMERVILLE J.

An agent who is authorized only to solicit and take applications for insurance, receive the premiums, and deliver the policy after it has been signed by the proper officers has no authority, express or implied, to waive a breach of any condition of the policy after it has been delivered. Queen Ins. Co. v. Young, 86 Ala. 424, 5 So. 116, 11 Am.St.Rep. 51; Ala. State Mut. Assur. Co. v. Long, etc Co., 123 Ala. 667, 677, 26 So. 655; Phoenix Ins. Co v. Copeland, 90 Ala. 386, 8 So. 48; 14 R.C.L. 1159, § 340; 26 Corp.Jur. 289, § 361. This is so not because of the express limitation on the agent's authority, but because such a waiver is not within the apparent scope of his authority.

But when the agent is "empowered to enter into contracts, take risks, deliver policies, and receive premiums, without consulting the insurer," he is quoad hoc, a general agent, notwithstanding the restriction of his territory; and the apparent scope of his authority "includes the power to dispense with conditions in policies issued through his agency, and his acts in the exercise of this power will bind the insurer in the absence of any limitation on his authority known to the insured. His power and authority in respect to waiver are the same as that of the insurer himself. He may accordingly waive a forfeiture which has occurred by reason of a breach of condition, in the absence of collusion between himself and insured." 26 Corp.Jur. 287, 288, § 360; 14 R.C.L. 1158, § 339. And, on the same principle, he may waive or excuse the performance of a duty imposed upon the insured, consequent upon the loss, and in relation thereto. Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 So. 46.

Under its written commission from the defendant company, which is to be liberally construed, and the testimony of Mr. Jones, the president of the Mabry Securities Company, we think the latter company was the general local agent of defendant, with the apparent authority to waive or excuse the making of proofs of loss as required by the policy. This authority is not defeated by the provision of the policy itself that "no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto." Georgia Home Ins. Co. v. Allen, 128 Ala. 451, 460, 30 So. 537. Whether or not, if that provision had been expressly limited to local agents, it would have been sufficient to defeat the otherwise apparent authority to waive, we need not determine, since the provision is not so limited. See Judge Freeman's note to Johnson v. AEtna Ins. Co. (Ga.) 107 Am.St.Rep. 92, 101-103.

Plaintiff relies upon two separate conversations, held by him in the office of Mabry Securities Company, as showing a waiver by, or estoppel upon, defendant with respect to his failure to furnish the required proofs of loss. The first of these was with one Paul Stewart, an office clerk of the Mabry Company, who, on its behalf, solicited applications for insurance, to be placed contingently with one or another of the several companies represented by the Mabry Company. One McLean, a casual solicitor for the Mabry Company, secured the application for this policy from plaintiff, and Stewart placed it with defendant and superintended its issuance and delivery. Stewart was not the agent of defendant, and, so far as appears, defendant had no knowledge of his employment. He was, therefore, without authority to bind defendant by any declarations he may have made to plaintiff as to the necessity, or not, of making proofs of loss. Waldman v. North Brit. & Merc. Ins. Co., 91 Ala. 170, 8 So. 666, 24 Am.St.Rep. 883; Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 384, 96 So. 250.

The conversation with Mr. Jones, president of the Mabry Company occurred on September 27, the sixtieth day after the fire. Plaintiff visited the Mabry Company's office for the purpose of inquiring as to defendant's failure to pay him the insurance money. Mr. Jones told him he understood the insurance company had enough evidence to show that plaintiff himself burned his house. Plaintiff asked him what was the best...