Syndicate Ins. Co. v. Catchings

• Decision Date: 21 June 1894
• Citation: 104 Ala. 176,16 So. 46
• Parties: SYNDICATE INS. CO. v. CATCHINGS.
• Court: Alabama Supreme Court

16 So. 46

104 Ala. 176

SYNDICATE INS. CO. v. CATCHINGS.

Supreme Court of Alabama

June 21, 1894

Appeal from circuit court, Barbour county; J. M. Carmichael, Judge.

Action by Julia Catchings against the Syndicate Insurance Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

This action counted upon a policy of fire insurance, which had been issued by the defendant to the plaintiff. On the summons and complaint issued in said cause there was indorsed the following acceptance of service: "As agents for the defendant herein named, and for such defendant, we hereby accept service of the within summons and complaint, and waive copy. L. Y. Dean & Co., Agents." The complaint in this case is on a policy of fire insurance on a ginhouse and its contents, issued by the defendant company, the appellant, to the plaintiff below, appellee here, and is in the form prescribed in the Code. There were four pleas. In the first it was alleged that, on the 20th November, 1891, in the application made by the plaintiff to the defendant for insurance, and upon which application and the representations contained therein the policy of insurance was issued, the plaintiff, in response to the questions, if there was any mortgage or incumbrance on the property insured, or, if any other party was interested in the property, answered each question in the negative; that said policy contained the provision, that "this entire policy shall be void, if the insured has concealed or misrepresented in writing, or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the assured be not truly stated;" that the answer of plaintiff was false in fact; that at the time said application was made, and said policy of insurance was issued to her, the Scottish-American Mortgage Company, Limited, of Edinborough, Scotland, held and owned a mortgage on all the property covered by and embraced in said policy of insurance and was interested in said property, which mortgage was executed by the plaintiff, on the 2d of February, 1891, and was in full force and effect at the time said policy was issued. In its second plea the defendant alleged, that by the terms of the policy sued on, it was provided that, "if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple, the entire policy shall be void;" that the interest of the insured in the property embraced in the policy of insurance was not an unconditional and sole ownership; and that, therefore, the defendant is not liable thereunder. In the third plea it was alleged that by the terms of said policy, it is provided that "within sixty days after the fire, unless such time is extended in writing by this company, the insured shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and all others in the property, the cash value of each item thereof and the amount of loss thereon, all incumbrances thereon, all other insurance, whether valid or not, covering any of said property," and that, "no suit or action on this policy, for the recovery of claims shall be sustainable in any court of law or equity, until after full compliance by the insured, with all the foregoing requirements;" that plaintiff never furnished to it said proofs of loss, as required by said terms of said policy; and that, therefore, the defendant is not liable to plaintiff under the policy sued on. In its fourth plea the defendant alleged that as a part of the contract of insurance, the plaintiff agreed, "as a condition of said insurance, that she would keep in the room, with the gin stand insured, and within ten feet thereof, one barrel full of water, and two buckets;" but that at the time complained of, the plaintiff was not keeping, and had not for a long time kept, in said room, and within ten feet of said gin stand, the barrel of water, and two buckets as provided by said policy; and that, therefore, defendant was not liable under said policy. The plaintiff filed replications to said pleas. To the first the second pleas she replied, in substance, that the plaintiff applied to the defendant for insurance as per the policy sued on; that during the negotiations for the insurance, and before the policy issued the agent of defendant, duly authorized to take plaintiff's application for insurance, and who did take it, and who was authorized to deliver said policy and receive the premiums, was informed by plaintiff of all the facts and circumstances connected with plaintiff's title, ownership and interest in said property, and the land on which the ginhouse is situated; that plaintiff, by her agent, answered the questions in said application propounded to her by the agent of defendant, who wrote down the answers, and neither plaintiff nor her agent saw said application after it was signed, and did not read over the answers written down by defendant's agent, but that plaintiff's agent did fully and truthfully inform defendant's agent at the time of all the circumstances connected with her title, ownership and interest in said property, and defendant's agent being thus informed, wrote said answers as they appear in said application, and defendant having full knowledge of the title and interest of plaintiff in the property, issued said policy to plaintiff, demanded and received from plaintiff the premium thereon; that at the time of said application, plaintiff's agent informed defendant's duly authorized agent that said Scottish-American Mortgage Company, Limited, had a mortgage given by plaintiff on the land on which said insured ginhouse was situated, and with this knowledge and information defendant's said agent wrote said answers in said application, and defendant issued said policy sued on and received the premiums therefor. To plea numbered 3, the plaintiff replied, in substance, that within less than 60 days, after the fire, the plaintiff called on the defendant's duly-authorized agent, to make all the preliminary proof of loss required by said policy, and defendant then and there notified and informed plaintiff not to make the same, that it would not pay the amount due under said policy, if said proof was made, that it would resist the payment of said policy upon another ground, viz., that a portion of said property had been mortgaged, and by reason of this express waiver, said proof was not fully made. To the fourth plea the plaintiff replied that the provision as to the barrel of water and buckets being kept within 10 feet of the gin stand, "was a mere promissory representation to do something in the future, which was not material to the risk, because the fire occurred at night, when all persons on the premises near said ginhouse were asleep, or had retired for the night, and when the first person discovered, or could under the circumstances have discovered, the fire, it was too late to save the building with said barrel of water and buckets, or otherwise." The defendant took issue on these replications to the four pleas, and the trial was had upon them.

The plaintiff introduced in evidence the policy of insurance sued on, purporting to have been issued by the Syndicate Insurance Company of Minneapolis, Minn., signed by its president and secretary, on the 20th day of November, 1891, and countersigned, at Eufaula, Ala., on the same day,-20th November,1891,-by "L. Y. Dean & Co., Agents." The plaintiff then introduced evidence tending to prove, that on the 20th day of November, 1891, she applied to Dean & Co. insurance agents in the city of Eufaula, Ala., by her agent, Warren Cooper, for insurance on the property mentioned in the policy, and that they informed her said agent that a written application would have to be made; that the same was made in the office of said Dean & Co.; that said application was filled out by George M. Jordan, a clerk in the office of said Dean & Co., who wrote down the answers of plaintiff's agent; but the answers were never read over to him, and said Cooper never saw them again until the trial of the case; that said clerk collected insurance premiums, made out application for insurance, solicited insurance, and did anything else that Dean & Co. requested him to do, in connection with the insurance business; that while the application was being filled out, E. M. Cargill, one of the firm of Dean & Co., was at work at his desk in said office, within a few feet of where said Cooper and Jordan were filling out said application, and remained the whole time said application was being made out; that L. Y. Dean, the other partner, was in the office a part of the time, and heard a part of the conversation between Jordan and Cooper, and told Jordan that he knew the ginhouse was in good condition; that shortly after that, she received the policy from Dean & Co., and paid the premium to them; that on the 20th of January, 1892, all the property insured was destroyed by fire, about 9 o'clock at night, after plaintiff and her agent had retired; that when first discovered, the fire was too far advanced to be put out, or for any one to get near the burning building; that on the next morning after the fire, her agent came to Eufaula, and notified said Dean & Co. of the fire and of the burning of said insured property, who told him that they would notify the company of the loss, and that when so notified it would send an agent and look after and adjust the loss; that the agent saw Dean & Co. after that, and they said they supposed the company was behind with their work, which was the cause of the delay, but that an adjuster would...