Springfield Fire & Marine Ins. Co. v. De Jarnett

• Decision Date: 28 April 1896
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. v. DE JARNETT.
• Court: Alabama Supreme Court

19 So. 995

111 Ala. 248

SPRINGFIELD FIRE & MARINE INS. CO. v. DE JARNETT.

Supreme Court of Alabama

April 28, 1896

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Action by Hugh M. De Jarnett against the Springfield Fire & Marine Insurance Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

This was an action brought by the appellee, Hugh M. De Jarnett against the appellant, the Springfield Fire & Marine Insurance Company, to recover upon a contract of insurance for the destruction of a small house in the town of Cleveland, Jefferson county, Ala. The facts are so few upon which there is an agreement that it is scarcely necessary to note them. Almost every fact in the case is controverted except that appellee desired insurance. The facts of the case, as gathered from the bill of exceptions, may be summarized as follows: H. M. De Jarnett, appellee, on the 24th of March, 1893, insured a house with appellant in Cleveland, for one year, and received, as an evidence of that insurance, a policy, No. 989, made Exhibit A to the bill of exceptions in this case. About the 10th of April, he applied to the defendant to have this policy extended for three years from March 24, 1893, so as to make the policy expire March 24, 1896. During the month of November, 1893, he applied at the office of James A. Going, the appellant's agent at Birmingham, to insure a small house which was burned December 13, 1893. He sent his brother with money to the office of Going, who did not find Going in the office, but found a son of Going, by the name of Richard, who was not employed in the office. To this young man he made known that he wanted to procure insurance for appellee on a little house that had been moved from one lot to the lot on which it was situated. He testified that he had paid a premium of $1.50, and took a receipt, giving a description of the property to be insured that, going out of the office, he met Going, the agent, who upon being told what he had done, refused to accept the proposed insurance, but, according to this witness, said that he would arrange the insurance by inserting a description in the policy he already had. The money was returned to him, and the receipt surrendered. Both James A. Going and the son substantially contradicted this witness in this particular. Both say that he did not meet James A. Going while going out of the office, and both say no receipt was given or surrendered. James A. Going says that from some De Jarnett he knew of such application. This witness further states that he reported to appellee his version of the conversation. Appellee, in his testimony, states that on the 20th of November, 1893, in company with another brother, he went to the office of Going, the agent; did not find the agent in, but found his son Henry, whom he knew as an employé in the office, as a clerk and bookkeeper; that he had dealt with James A. Going for four or five years, and knew James A. Going to be the agent, and his son Henry to be a clerk of James A. Going. He knew that Henry Going did the clerical work on the policies, filled up policies, gave receipts for money paid on premiums, signing James A. Going's name to such receipts, but that he did not sign the policies; that all his policies (that he had had several from James A. Going) were signed at the bottom of the policies by James A. Going himself, in his own handwriting. Appellee paid to Henry Going $18,-$5 for himself, $5 for a brother, and $8 for his father; taking three separate receipts, but paying, as he states, on four different policies. The receipt taken for the payment of his own account bears date November 20, 1893, and on its face purports to be $5 paid on premium due on policy 987, which the testimony shows to have been intended for 989. He stated that $3, of the $5, he paid for the insurance on the little house that he desired to insure, and $2 on what he still owed on the original policy, No. 989, which was $10, leaving a balance due on old account of $8; that, when he paid the $3, he told Henry Going he desired insurance on this little house, and that his father had stated that it could be inserted in the old policy; that Henry Going replied that his father had told him about it; and that he would fix it up for him, exhibiting a blue slip of paper on which the description of the property to be insured would be made out, and be inserted into the policy. Appellee stated that he did not have the policy 989 with him, and that Henry told him to bring it up or send it up, and he would fix it up for him. On this subject, Henry Going testified: That the money was not paid on account of any new insurance. That after the money had been paid, and when he was writing out the three receipts, appellee stated to him that he wanted to insure this little house, but that James A. Going refused to insure it on account of the amount desired. To this Henry replied that, that being the case, he could do nothing further, but suggested to appellee to send up or bring up the policy, and he would see if the matter could not be arranged by inserting the new risk in the former policy 989. That he did not exhibit any blue slip, because they used no such colored blanks with the policies issued by defendant. This was the first time he had ever heard of this risk. That his father, the agent, had never said anything to him about it, and he knew nothing about such insurance being wanted. That his father had not directed him what to do in the matter. James A. Going, on this subject, testified that he had not instructed his son to insure this house by inserting a description of it in the old policy, and never had heard of such an application before his son named it to him, on a subsequent occasion, and then he had declined it. On the 25th of November, a sister of appellee came into the office, finding Henry Going there, and not finding James A. Going there; delivered the policy to Henry Going, telling him, in substance, that her brother had sent up the policy to be fixed up; and Henry Going told her that his father directed him what to do. Upon this subject, Henry Going says that he did not tell her that his father had told him what to do, but that appellee had told him what he wanted, and that he would see his father about the matter. Henry Going further testified that, when his father came into the office, the policy was lying on the desk, and he told his father what appellee wanted, and what the policy had been sent up for. Then James A. Going stated that he would not take the risk; that it could not be done. After the house was burnt, another brother of appellee testified: That he went, at the instance of appellee, to the office of James A. Going, and told him that he had come there for that policy that belonged to appellee; that the house had been burned. That Going stated that he had no policy on the little house; he had a policy on the other house; and that he had been ordered by the agent not to insure it. Going, in substance, denies this conversation. He admits that a De Jarnett called for the policy, and that he had told him that he had no insurance upon the house that was burned, but did not tell him that the agent had forbidden it. He had told the father of plaintiff about the 25th of November, when he canceled a policy for the father, that the special agent of the appellant had forbidden insurance on property for a smaller amount than $500. Appellee testified also that he had called for the policy, and was told by Going that there was no insurance on the house, and that he had stated to Going at that time that he had paid for insurance, and thought that his house was insured. The house was shown to be worth, by appellee, from $250 to $300. The testimony further showed that James A. Going did business under a commission executed to him by appellant for Jefferson county and vicinity of Birmingham. That commission directed him to take applications for risks, and issue policies, and to grant extensions where policies had been issued. The proof showed that this agent received the policies in blank, signed by the president, and that the policies were not of any force until countersigned by James A. Going, agent; that daily reports of the business transacted in the office were made to the defendant, always signed by James A. Going; and that the defendant did not know Henry Going as an agent; and that Henry Going had never assumed to act as agent, or to do any business in the office, except clerical work and as bookkeeper. The case made by the appellee is where the applicant for insurance had complete knowledge that the party with whom he dealt was not the agent, but merely the clerk of the agent, and that James A. Going was the agent, and in that regard there was no room whatever for mistake. The last stage of the transaction showed that Henry Going received the policy to refer to the agent an application from appellee, and did not show a contract of insurance. The fifth and sixth counts of the complaint allege that the house proposed to be insured, and which was burned, was adjoining a dwelling house already insured in and by policy No. 989. The proof showed that the house burned, and for the destruction of which this suit was brought, was not adjoining the house insured in policy 989, but was on another lot, not less than 50 feet distant, and, from the proof of one witness at least, 100 feet distant, and separated from the house previously insured by an alley and a fence, so that in no sense could the house burned be said to be adjoining the house previously insured.

The complaint originally consisted of two counts, in the form prescribed by the Code, and both counts purport to be upon a policy of insurance. To the complaint as originally filed defendant...