Royal Exchange Assur. of London v. Almon

• Citation: 202 Ala. 374,80 So. 456
• Decision Date: 21 November 1918
• Docket Number: 8 Div. 43
• Parties: ROYAL EXCHANGE ASSURANCE OF LONDON v. ALMON.
• Court: Alabama Supreme Court

80 So. 456

202 Ala. 374

ROYAL EXCHANGE ASSURANCE OF LONDON v. ALMON.

8 Div. 43

Supreme Court of Alabama

November 21, 1918

Rehearing Denied Dec. 21, 1918

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action by John Almon against the Royal Exchange Assurance of London. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Wert &amp Lynne, of Decatur, for appellant.

Callahan & Harris, of Decatur, for appellee.

SAYRE J.

The fourth count of the complaint followed the form (13) shown on page 1196 of the Code for a complaint on a policy of fire insurance, except that it omitted the following words contained in the form: "And other perils in the policy of insurance mentioned." Plaintiff sued to recover a loss caused by fire alone. The words omitted were useless to his complaint, which, in our judgment, fell within the influence of section 5322 of the Code, providing that "any pleading which conforms substantially to the schedule of forms in this Code is sufficient." Herring v. Skaggs, 73 Ala. 446; Commercial Fire Ins. Co. v. Capital Ins. Co., 81 Ala. 320, 8 So. 222, 60 Am.Rep. 162.

Plaintiff's (appellee's) policy stipulated that--

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void *** if the interest of the insured be other than unconditional and sole ownership."

And defendant pleaded a breach of this stipulation. Plaintiff's replication numbered 2 replied by alleging that prior to the policy he had made to the agent representing defendant in negotiating the contract a complete disclosure of his interest in and relation to the property insured. Defendant cites cases from other jurisdictions which would condemn this replication, but it is settled in this state, and "it has been very generally held, that knowledge by, or notice to, the agent, of the inaccuracy of a statement in the application upon which a policy is issued after such notice or knowledge, binds the company, and prevents them from availing themselves of the inaccuracy in defense." Syndicate Ins. Co. v. Catchings, 104 Ala. 176, 16 So. 46. The demurrer to the replication was properly overruled.

There was evidence to prove Wyatt's general agency for defendant "in New Decatur and vicinity." Sun Ins. Office v. Mitchell, 186 Ala. 420, 65 So. 143. If plaintiff's property was within the territorial area of Wyatt's agency--and that, as we shall see, was a question for the jury--statements made by him pending negotiation and tending to prove a contract between Wyatt, as agent, and plaintiff, were admissible to bind defendant.

The rulings made the subject of assignments 43 and 44 do not show reversible error. The bill of exceptions is not clear, but it appears that the policy of insurance in suit at the time of these questions was probably in the hands of attorneys for the defendant. Notice to produce had been served. If this be a correct version of the facts, there was no error in permitting the witness to state what property was described in the policy. And, in any case, the policy was afterwards produced and put in evidence, thus making it plain that defendant had suffered no harm by the rulings in question. This applies also to the ruling on the question as to the amount of insurance stipulated in the policy.

It is urged that for various reasons no contract of insurance was consummated between the parties. The plea of non est factum put upon plaintiff the burden of proving the execution and delivery of the policy.

It is said that the property described in the alleged policy was without the territorial limits of the agency confided by defendant to Wyatt, with whom plaintiff claims to have negotiated his contract. Under the evidence, which we need not detail, this, it seems, was a question of fact for the jury. Insurance Co. v. Thornton, 130 Ala. 222, 30 So. 614, 55 L.R.A. 547, 89 Am.St.Rep. 30; Sun Insurance Office v. Mitchell, 186 Ala. 420, 65 So. 143.

It is further contended that the policy in suit was void for lack of compliance with a stipulation thereof to the effect that it should not be valid unless countersigned by the duly authorized agent of the defendant at New Decatur. Our opinion is that this objection to the policy offered in evidence was fatal, there being no evidence tending to show a waiver by the defendant as distinguished from its agent at New Decatur. There may be a case or two to the contrary, but it is quite generally held that a stipulation that a policy must be countersigned by the agent, in order to become a binding obligation, is one which the insurer has a legal right to make, and is not in any sense oppressive or unconscionable. The countersigning is regarded as a necessary part of the execution of the policy, and is therefore essential to its validity. Firemen's Ins. Co. v. Barnsch, 161 Ill. 629, 44 N.E. 285; Badger v. American Popular Ins Co., 103 Mass. 244, 4 Am.Rep. 547; Lynn v Burgoyne, 13 B.Mon. (...