U.S. Health & Accident Ins. Co. v. Goin

• Decision Date: 16 November 1916
• Docket Number: 6 Div. 275
• Citation: 73 So. 117,197 Ala. 584
• Parties: UNITED STATES HEALTH & ACCIDENT INS. CO. v. GOIN.
• Court: Alabama Supreme Court

73 So. 117

197 Ala. 584

UNITED STATES HEALTH & ACCIDENT INS. CO. v. GOIN.

6 Div. 275

Supreme Court of Alabama

November 16, 1916

Appeal from City Court of Birmingham; H.A. Sharpe, Judge.

Action by Logwood U. Goin against the United States Health &amp Accident Company upon a policy. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Palmer P. Daugette, of Birmingham, for appellant.

Frank S. White & Sons, of Birmingham, for appellee.

ANDERSON C.J.

The demurrers to counts 1 and 3 of the complaint were general and did not comply with the requirements of section 5340 of the Code of 1907, and whether the counts were or were not subject to an appropriate demurrer, which we need not decide, the trial court will not be put in error for overruling the demurrers in question. Allen v. Fincher, 187 Ala 599, 65 So. 946; Francis v. Sandlin, 150 Ala. 585 43 So. 829; L. & N.R.R. Co. v. Johnson, 162 Ala. 665, 50 So. 300; St. L. & S.F.R.R. Co. v. Phillips, 165 Ala. 504, 51 So. 638.

Whether the defendant's special pleas 3, 4, 5, and 6 were or were not subject to the demurrer, which was sustained thereto, we need not decide, for if there was error, it was error without injury, as the defendant got the full benefit of the same under pleas 7 and 8, to which the demurrer was overruled, as the facts relied upon in said pleas 3, 4, 5, and 6 were not only provable under pleas 7 and 8, but the bill of exceptions shows that they were in fact proven. Birmingham R.R. Co. v. Johnson, 183 Ala. 352, 61 So. 79; United States I. Co. v. Hill, 9 Ala.App. 222, 62 So. 954; Birmingham R.R. Co. v. Bush, 175 Ala. 49, 56 So. 731. Pleas 3 and 5 are substantially the same as plea 7, and pleas 4 and 6 are substantially the same as plea 8.

Replication 5, in substance, sets up a waiver by the defendant of the breach of warranty relied upon in pleas 7 and 8, by an acceptance of the premiums after a knowledge of the said breach.

"The acceptance by an insurance company, with knowledge of facts authorizing a forfeiture or avoidance of the policy, of premiums or assessments which were in no degree earned at the time of such forfeiture or avoidance, constitutes a waiver thereof. This waiver is based on the estoppel of the company to declare void and of no effect insurance for which, with knowledge of the facts, full compensation has been received." Cooley's Briefs on Insurance, pp. 2684, 2685, and cases there cited.

"In the absence of special stipulations restricting the power of agents, the knowledge of an agent having power to issue policies and collect premiums, followed by the acceptance of a premium, will be sufficient to amount to a waiver." Cooley's Briefs on Insurance, p. 2696.

This replication was not subject to the defendant's demurrer. The rejoinder to this replication 5 was subject to the demurrer interposed and which was properly sustained by the trial court. It set up restrictions as to the power and authority of the agent in and about the procurement of the policy and not a limitation upon the agent to bind it by acts subsequent to the issuance of the policy. Moreover, such a restriction as would forbid the reception of premiums by agents, with full knowledge of the facts, from operating as a waiver of a right to declare a forfeiture for causes previously existing would probably be...