Sellers v. Commercial Fire Ins. Co.

• Decision Date: 09 January 1895
• Citation: 105 Ala. 282,16 So. 798
• Parties: SELLERS ET AL. v. COMMERCIAL FIRE INS. CO.
• Court: Alabama Supreme Court

16 So. 798

105 Ala. 282

SELLERS ET AL. v. COMMERCIAL FIRE INS. CO.

Supreme Court of Alabama

January 9, 1895

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Suit by J. S. Sellers & Sons against the Commercial Fire Insurance Company to recover on a certain policy of fire insurance issued by the defendant to the plaintiffs on a certain storehouse and the goods therein contained. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

The defendant pleaded a breach of warranty in the application for the policy as to the location of the storehouse insured alleging in said plea that plaintiffs had made a false statement in their application. The plaintiffs replied to this plea that there was no such breach, for the reason that they had made no such statement as alleged in said plea, and averred that they had truly represented the location of the property to the agent of the defendant who had filled the blank spaces in said application, and that they had been induced to sign the written application with said alleged statements therein by the fraudulent misrepresentations of the agent of the said defendant, on which they relied. The defendant filed a rejoinder to this replication, and issue was joined thereon. The facts, as shown by the bill of exceptions, are as follows: Plaintiff testified that on the 5th day of April, 1892, he called on Trimble & Co., who were insurance agents, and spoke to them "about procuring some insurance on the storehouse of plaintiffs"; that he told Trimble he wanted to insure a one-story frame building together with the goods belonging to plaintiff's firm therein; that he also said to him that the storehouse was located about five miles from Ada, and was known as a "country store," and was situated on about a half-acre lot near J. S. Sellers' plantation; that, while he was talking, Trimble took a blank application, and wrote something therein; that, after he finished writing, he asked the witness to sign the application; that he (witness) asked Trimble if he had written in the application the facts stated by him; that Trimble replied that he had, and thereupon he signed the application. He also testified that he could read with difficulty, and relied on Trimble's representation and that he did not state to Trimble that the storehouse was upon the plantation. On cross-examination, this witness was shown a paper which was attached as an exhibit to the bill of exceptions. This was an application for insurance addressed to the Syndicate Insurance Company of Minneapolis, Minn. It contains a description of the property sought to be insured and describes it as situated on the plantation of assured, five miles from Ada. He testified that the signature to the paper was in his handwriting, and that he had never made but one application to Trimble for insurance upon this particular storehouse; that no other application ever made by him contained a description of this storehouse or the goods therein. Defendant then offered this paper in evidence. Objection was made to it, the objection going to its identification as the paper upon which the policy of insurance was issued. This objection was overruled, and plaintiffs duly excepted. This witness further testified that on the 10th of April, after the application was made, he obtained from Trimble & Co. the policy sued upon, and paid Trimble a premium of $18.13 thereon; that he never employed Trimble & Co. to obtain the policy of insurance for him; and that they were not authorized to act as his agents. The plaintiffs then introduced George Stuart, of the firm of Trimble & Co. He testified that he was the party by whom the application was written out; that he wrote it out as directed by J. S. Sellers; that the application introduced in evidence was the one which he wrote; that it was written out by him in Sellers' presence, and that the description of the location of the building was written as directed by Sellers, and it was read over to Sellers after he had written it, and then signed; that, after the application was written he took it to Holt & Abercrombie, who were the agents of defendant company, and obtained from them the policy upon the application; a few days thereafter, Sellers came and got the policy, and handed to him the amount of the premium; that they charged Sellers nothing for getting the policy; that they had an agreement with the agents of defendant and with the agents of other insurance companies, that they should receive from those agents a certain share of the commissions which the agents received from the companies on all policies brought by witness' firm to such agents; and that they did receive from the agent of defendant their share of those commissions. This witness further testified that neither the firm nor any member thereof was at the time the policy was issued, or had ever been, the agents of defendant, and that, so far as he knew, the defendant had no knowledge or notice of the arrangement between his firm and its agents. Counsel for plaintiffs announced that this was all the evidence that they had on the question of the authority of Trimble & Co. as agents and representatives of defendant. Thereupon counsel for defendant moved the court to exclude from evidence the testimony of the witness Sellers that he stated to the party to whom he made the application that the storehouse was located on a half-acre lot belonging to plaintiffs' firm, and that it was not stated that it was located upon the plantation. The court sustained this motion. The plaintiffs excepted, and, after this ruling, took a nonsuit, with a bill of exceptions.

Sayre & Pearson and Chas. Wilkinson, for appellants.

Tompkins & Troy, for appellee.

BRICKELL C.J.

It is obvious the admissibility of the evidence excluded is to be tested by the inquiry whether Trimble & Co., when a member of the firm prepared the application for insurance in which occurred the misdescription of the location of the storehouse, were the agents of the defendant. If there was legal evidence having a tendency to support the affirmative of this inquiry, the evidence excluded ought to have been received, leaving the jury to pass upon its sufficiency and credibility, however much may have been the conflict in the evidence touching the transaction to which it related. If there was an absence of such evidence, or if the legal evidence, without conflict, showed that, in the preparation of the application and the procurement of the insurance Trimble & Co. were the agents of the plaintiffs, the evidence was properly excluded. "Res inter alios acta alteri nocere non debet," is a maxim of the law of evidence, of great practical usefulness, and of the highest importance. "On a principle of good faith and mutual convenience, a man's own acts are binding upon himself, and are, as well as his conduct and declarations, evidence against him; yet it would not only be highly inconvenient, but also manifestly unjust, that a man shall be bound by the acts of mere unauthorized strangers; and, if a party ought not to be bound by the acts of strangers, so neither ought their acts or conduct to be used as evidence against him." Broom, Leg. Max. 954. Hence agency is a fact the burden of proving which rests upon the party affirming its existence; and it must be proved by other evidence than the acts or declarations of the...