Prine v. American Central Ins. Co.

• Decision Date: 19 January 1911
• Citation: 54 So. 547,171 Ala. 343
• Parties: PRINE v. AMERICAN CENTRAL INS. CO.
• Court: Alabama Supreme Court

54 So. 547

171 Ala. 343

PRINE v. AMERICAN CENTRAL INS. CO.

Supreme Court of Alabama

January 19, 1911

Appeal from Law and Equity Court, Mobile County; Saffold Berney Judge.

Action by Florence H. Prine against the American Central Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Count 2 is as follows: "Plaintiff claims of defendant the sum of $400, the value of a frame, shingle-roof storehouse, and the further sum of $750, the value of the stock of merchandise consisting of dry goods, notions, boots, shoes, groceries and other goods not more hazardous, suitable to plaintiff's line of business, formerly contained in the above storehouse, all of which the defendant, on, to wit, the 29th day of May, 1906, insured against loss or injury by fire and other perils, in the policy of insurance mentioned, which said policy was issued in the name of L. L. Prine, for the term of one year, and which property was destroyed by fire on, to wit, the 10th day of August, 1906, of which the defendant has had notice." Count 2a is the same as count 2, except that it alleges that the policy was by mistake issued in the name of L. L. Prine, for the term of one year. Count 2b is the same as count 2, except that it is alleged that the policy was wrongfully issued in the name of L. L Prine. Count 5a is in all respects similar to count 2a, with the further allegation that at the time the insurance was issued, or at a time subsequent thereto, the defendant was a member of and connected with a tariff association, to wit the Southeastern Tariff Association, or had an understanding with other corporations engaged in the business of insurance, relating to the rates of insurance which should be fixed for fire insurance; and the plaintiff claims, under the provisions of article 3, chapter 63, of the Code of 1896, the further and additional sum of $287.50. Count 5b is in all respects similar to count 5a, except that it is alleged that the policy was wrongfully issued in the name of L. L. Prine. Counts 2a and 5a were afterwards amended by the further allegation that the insurance was taken out by plaintiff upon her property above described, but said policy, by mistake of defendant's agent, was written in the name of L. L. Prine.

The second plea set up that the plaintiff is estopped from claiming or alleging that the policy of insurance which is the foundation of the action was issued to plaintiff, because the plaintiff or her duly authorized agent read over so much of the policy of insurance as showed that it was issued to Mr. L. L. Prine, and, with the knowledge of the fact that said policy was so issued, failed within a reasonable time thereafter to notify the defendant of the error in the name of the person to whom it was issued.

The second replication to this plea was that, at the time the policy of insurance claimed upon was delivered, plaintiff received said policy and read the written part and the printed pasters thereon, and J. L. Grace, defendant's agent, with authority to solicit insurance, and receive and receipt for premium, assured her that everything was fixed all right; and plaintiff, relying upon said assurance, kept said policy. Wherefore, by reason of the representation of defendant's said agent, defendant is now estopped from setting up the matter contained in said second plea. The other replication to the plea is that after the loss claimed in the complaint had accrued, and after the defendhad knowledge of the alleged breach it now sets up, and during, to wit, the month of December, 1906, T. L. Moore who was the duly authorized agent of defendant in Mobile, Ala., with authority to issue policies and receive and receipt for premiums, insisted upon the payment by L. L. Prine, as agent of plaintiff, of the unpaid balance of the premium for the insurance upon which this suit is based, and which said premium was paid. Wherefore plaintiff says that defendant is now estopped from denying liability under this policy.

Elliott G. Rickarby and J. M. Bonner, for appellant.

R. H. & R. M. Smith, for appellee.

ANDERSON J.

The Code form (No. 13) upon a fire insurance policy implies and action by the assured, and, where the complaint names some one other than the assured as plaintiff, it must set up facts showing how and in what...