London & Lancashire Ins. Co. v. McWilliams

• Decision Date: 08 November 1928
• Docket Number: 2 Div. 921
• Citation: 218 Ala. 503,119 So. 15
• Parties: LONDON & LANCASHIRE INS. CO. v. McWILLIAMS.
• Court: Alabama Supreme Court

119 So. 15

218 Ala. 503

LONDON & LANCASHIRE INS. CO. v. McWILLIAMS.

2 Div. 921

Supreme Court of Alabama

November 8, 1928

Rehearing Denied Dec. 20, 1928

Appeal from Circuit Court, Wilcox County; Thos. E. Knight, Judge.

Suit by J.M. McWilliams against the London & Lancashire Insurance Company on a fire insurance policy. Judgment for plaintiff and defendant appeals. Affirmed.

Steiner Crum & Weil, of Montgomery, Paul E. Jones, of Camden, and Pettus, Fuller & Lapsley, of Selma, for appellant.

Hobbs Craig & Brown, of Selma, for appellee.

GARDNER J.

Action on a policy of fire insurance by J.M. McWilliams against the London & Lancashire Insurance Company. From a judgment for the plaintiff, defendant appeals. This is the second appeal in the cause. London & Lancashire Ins. Co. v. McWilliams, 215 Ala. 481, 110 So. 909.

The defendant relied upon a breach of the policy provision requiring proof of loss as condition precedent to a recovery thereon, and as a further defense to the action that plaintiff willfully burned the insured property. Plaintiff admitted a failure to furnish proof of loss as required by the policy, but relied upon a waiver (replication A) of this provision by the Mabry Securities Company representing defendant as its agent, and the conduct of said agent in reference thereto pleaded as an estoppel in replication B.

The sufficiency of these replications as considered on former appeal (numbered 3 and 6), and held defective in failing to allege that the agent was duly authorized in the premises, or that its acts and declarations in that behalf were within the scope of its agency. Replications A and B adopted replications 3 and 6, and added the above-noted averments suggested in the opinion on former appeal. We think the discussion of the question involved in these replications as found in that opinion, and the authorities therein cited, will suffice to demonstrate without further discussion the sufficiency of replications A and B as against the demurrer interposed thereto. See, also, Liverpool & London & Globe Ins. Co. v. McCree, 213 Ala. 534, 105 So. 901.

Counsel for appellee challenge the correctness of the former holding to the effect that the evidence is sufficient to establish the Mabry Securities Company as the general local agent of the defendant with apparent authority to waive proof of loss as required by the policy. The question was considered by this court on original consideration, and again upon application for rehearing on former appeal. The argument of counsel has been given due deliberation on this appeal, but we are not persuaded that holding was erroneous, and we adhere thereto.

It is further insisted that the great preponderance of the evidence was opposed to these replications, but we would be unwilling to disturb the trial court's finding upon that issue. The argument of counsel in this respect, moreover, loses sight of the further averment that the agent's denial of liability rested solely upon the ground that defendant had proof tending to show plaintiff burned his own house, thus constituting a waiver of other defenses (Southern States Fire Ins. Co. v. Kronenberg, 199 Ala. 164, 74 So. 63), and as to which, very clearly, it could not be successfully insisted the preponderance of the evidence was opposed.

It is strenuously argued by appellant's counsel that the defense of willful burning by the plaintiff of the property insured was established by evidence so strong and cogent as to call for a new trial, and that the defendant's motion to that end should have been granted, and the judgment set aside. The argument is forceful, and has been given careful consideration by the court in consultation in connection with the evidence in the case...