Phoenix Ins. Co. v. Seegers

• Decision Date: 22 April 1915
• Docket Number: 543
• Citation: 68 So. 902,192 Ala. 103
• Parties: PHOENIX INS. CO. v. SEEGERS.
• Court: Alabama Supreme Court

68 So. 902

192 Ala. 103

PHOENIX INS. CO. v. SEEGERS.

No. 543

Supreme Court of Alabama

April 22, 1915

Rehearing Denied June 3, 1915

Appeal from City Court of Andalusia; Ed T. Albritton, Judge.

Action by the Phoenix Insurance Company against J.E. Seegers in assumpsit. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The first count as amended was as follows:

"Plaintiff claims of defendant the sum of $1,524.55 as damages, for that, during the months of January and February 1913, defendant was the duly and legally appointed agent of the plaintiff at Andalusia, Ala., and as such agent was authorized and empowered to make insurance policies of plaintiff, to be countersigned by defendant as agent, and to renew the same, and to do all matters and things pertaining to its said appointment that should be given to him in charge by plaintiff or its general or special agent. Plaintiff avers that on January 5, 1913, plaintiff, through its special agent, Ben I. Simpson, instructed defendant to cancel its policy No. 1227, for $2,000 on a stock of ladies' and gents' furnishings of one Ed Wilks at Andalusia, Ala which said policy had been issued through defendant as its agent, and that in accordance with said instructions said policy was canceled by defendant on January 8, 1913, and plaintiff avers that no authority was afterwards conferred on defendant by plaintiff to make or issue any insurance to said Ed Wilks by policies of plaintiff, but that defendant although he had no authority, did on, to wit, February 14 1913, as the agent of plaintiff, issue and deliver, or cause to be delivered, to Ed Wilks another policy of insurance for $2,500 on the same stock of goods, covered by the policy which was canceled on said January 8, 1913, as hereinbefore alleged; that afterwards, on February 20, 1913, the property of said Wilks covered by the policy issued by defendant on February 14, 1913, was destroyed by fire, and that by reason of the issuance of said policy, and the loss sustained thereunder, plaintiff became liable to pay, and did pay, to said Wilks, for and on account of and in settlement of said loss under said policy, the sum of $1,250, and also the sum of $24.55, court cost incurred in said suit, the said Wilks in said suit having obtained a judgment against plaintiff for the sum of $1,250, besides the cost of the suit, said judgment having been rendered on November 19, 1913, in the circuit court of Covington county, and the same being paid and discharged at that time; and plaintiff avers that it became liable to pay, and did pay, to said Wilks said sum of $1,250 and court costs, as hereinbefore alleged, on account of the issuance of said policy by defendant to said Ed Wilks on the day and date above mentioned, as the agent of plaintiff, but without the knowledge, authority, and consent of plaintiff, and that defendant is liable to plaintiff for said sums so paid out, as hereinabove alleged, with the interest thereon."

The defendant filed pleas 4, 5, and 6, in substance that the damages claimed arose out of a contract of insurance made by defendant while acting as agent of plaintiff, and that while at the time of making the contract of insurance plaintiff was not incorporated by the laws of the state of Alabama, yet was legally authorized to do business in this state through regularly commissioned and licensed agents located in the state, but that at the time of the making of the contract of insurance described in the complaint, and out of which it is claimed the damages arose, plaintiff had not obtained from the insurance commissioner of Alabama a certificate of authority for defendant as agent of plaintiff to write or solicit insurance in this state.

The grounds of demurrer mentioned are as follows:

"No facts are averred showing that if plaintiff had complied with the requirements of the statute referred to in said plea, and had procured from the insurance commissioner a certificate of authority for defendant as agent for plaintiff to write or solicit insurance in this state, the acts of defendant complained of, upon which plaintiff's cause of action is based, would have been legal."

"(5) The cause of action is predicated upon defendant acting as its agent without authority in issuing and causing to be delivered to Ed Wilks the policy described in the first count of the complaint, and as a result of such unauthorized act causing plaintiff to become liable for the sum paid out by it as alleged, and it is nowhere averred that the action of defendant in causing said policy to be delivered to said Wilks was within the scope of the authority of defendant, and such an act by him as agent as required the obtaining of such certificate from the insurance commission of the state, as authority for defendant, as agent of plaintiff, to write or deliver said policy of insurance. No facts are averred in said plea showing any duty resting upon plaintiff which required it to obtain from the insurance commissioner of the state a certificate of authority to defendant as mentioned in said plea."

Pleas 7 and 8 aver, in substance, the issuance of the first policy; its cancellation by instruction; defendant's continuance and authority as agent to issue policy and renew same; the issuance of the policy on February 14, 1913, on the stock of goods; their destruction by fire; entry of suit for the amount of policy by Wilks against plaintiff; that while the suit was pending plaintiff agreed to pay said Ed Wilks the sum of $1,250 in settlement of said loss, and that the judgment referred to in the complaint was rendered by consent of the parties thereto; and that thereby plaintiff ratified the issuance of said policy under which the loss occurred, and for this reason ought not to recover.

Powell & Albritton, of Andalusia, for appellant.

Parks & Prestwood, of Andalusia, for appellee.

THOMAS J.

This is an appeal from rulings on pleadings, from the Andalusia city court of law and equity. Such appeals are provided by the act relating to procedure in that court. The plaintiff declared on the common counts and on the case. The reporter will set out the first count of the complaint as amended.

The court properly sustained a motion to strike that part of the first count, claiming attorney's fees for defending suit against the company on the insurance policy. Defendant's other grounds of demurrer to this count were properly overruled.

Defendant then filed pleas 1, 2, and 3 of the general issue, and payment, to the complaint, to which no demurrer would lie. Defendant's pleas 4, 5, and 6 were to the effect that the damages claimed arose out of a contract of insurance made by the defendant while acting as the agent of plaintiff non-resident insurance company, which was "legally authorized to do business in this state through regularly commissioned and licensed agents located in this state, but that at the time of the making of the contract of insurance described in the complaint, and out of which the plaintiff claims its damages arose, plaintiff had not obtained from the insurance commissioner of Alabama a certificate of authority for defendant as agent of plaintiff to write or solicit insurance in this state" by a certificate issued in January, 1913. Plaintiff's fourth, fifth, and sixth grounds of demurrer to defendant's pleas 4, 5, and 6 should have been sustained. The pleas were no answer to the complaint.

The count claimed damages from the agent for violating positive instructions not to issue a...