Williamson v. New Orleans Ins. Co.

• Decision Date: 22 March 1888
• Parties: WILLIAMSON v. NEW ORLEANS INS. CO.
• Court: Alabama Supreme Court

4 So. 36

84 Ala. 106

WILLIAMSON v. NEW ORLEANS INS. CO.

Supreme Court of Alabama

March 22, 1888

Appeal from circuit court, Lee county; H. D. CLAYTON, Judge.

This was an action brought by the appellant, J. E. Williamson against the appellee, the New Orleans Insurance Company, for the recovery of the amount of insurance due the plaintiff on two policies of insurance taken out in the defendant company. The complaint alleged that the property so insured had been completely destroyed by fire. The defendant pleaded that the plaintiff, through his agent, had misrepresented the true status of the property, had broken the warranty entered into with the company; and that therefore the company was not liable for the loss sustained by the plaintiff. Issue was joined on these pleas, and judgment was found in favor of the defendant. During the trial of the case, as shown by the bill of exceptions, the defendants asked one of their witnesses this question: "Did not farmers in that neighborhood usually gather, gin, and market their cotton before the time of year at which this fire occurred?" The plaintiff objected to this question, and also to its answer, and moved that the answer thereto be excluded from the jury. But the court overruled his objection and his motion, and allowed the witness to answer the question, and let the answer go to the jury for their consideration whereupon the plaintiff duly excepted. The defendant introduced in evidence the application of the plaintiff to the defendant to have the property insured in their company said application for insurance stating that all of the answers to the questions therein contained were warranted to be true and correct. To the questions as to whether or not the plaintiff, who was the applicant, was the sole and undisputed owner of the property herein sought to be insured and whether the title thereto was free from incumbrance, the answers, as shown by the application, were "Yes." The defendant then offered evidence tending to show that this was not true; that the plaintiff was not the sole owner of the property, but that the agent who made out the said application was interested in the property, and that there was an incumbrance upon the property. The plaintiff undertook to rebut this by showing that, at the time the said application was made out, the said agent stated the true state of the affairs to the agent of the insurance company who was writing the answers to the questions, and filling up the blank application; that the said agent said that was all right, and that would not make any difference; and that, after he was told just how the property stood, the agent of the insurance company wrote down the answer just as it was on the...