Georgia Home Insurance v. Allen

HARALSON, J. The decisions of this court consonant with those elsewhere, and the text writers, have settled the question, — relieving us from further discussion of it, — ithat an agent may waive the conditions in a. policy of insurance; and further, that when one specific ground of forfeiture is urged against a policy of insurance, and the validity thereof denied on that ground alone, all other grounds are waived. — Syndicate Ins. Co. v. Catchings, 104 Ala. 176; Liverpool, L. & G. Ins. Co. v. Tillis, 110 Ala. 201; Georgia Home Ins. Co. v. Allen, 119 Ala. 436; 1 Joyce on Ins., § 591; City C. of Montgomery v. Montgomery Water Works Co., 77 Ala. 256; Fire Ins. Co. v. Felrath, 86 Ala. 194; Central C. Ins. Co. v. Oates, 86 Ala. 568. “The question is not so much (observes Mr. Joyce) what powers did the agent actually possess, — it is the agent’s ostensible or apparent authority, that- Avhich he Is held out to the world to possess, Avhieh is the test of his actual [460] powers in tlie absence of knowledge of limitations thereon, on the part of persons dealing with such agent, xlnd the tendency of courts of the present day is toward a liberal rather than a strict construction •of an agent’s powers. * * * An insurance company is bound by the acts of its agents within the real or apparent scope of his authority, and to this extent, the act of the agent is the act of his principal. And this is so, even though he violates limitations upon that authority, which are not brought home to the knowledge of the party with whom he deals, and even though the agent’s acts be in direct violation of his instructions.” — 1 Joyce, on Ins., §§ 425., 426, 440. The same author lays it down, supported by a great array of authorities, that such an agent may waive conditions, notwithstanding inhibitions, in the policy; and that, where the agent, who has knowledge that a ground of forfeiture exists, and thereafter by some act recognizes the contract as valid, there is a waiver. — 1 Joyce, §§ 439, 541. In Insurance Company v. Young, 86 Ala. 424, it is said: “If the company after knowledge of the breach, enters into negotiations or transactions wi-tli the assured, which recognizes and treats the policy as still in force, or induces the assured to incur trouble or expense, it will be regarded as having waived the right to claim the forfeiture.” To the same effect is Ins. Co. v. Norton, 96 U. S. 241. Agreeably with these principles, this court held in Liverpool, L. & G. Ins. Co. v. Tillis, supra, as aptly expressed in that case, and directly applicable here, that “Where, after a fire, an insurance company sends a person to the scene of the fire, and authorizes him to act as an adjuster in the particular case, with all the authority in reference thereto that is given to general adjusters, the insured, in dealing with such person, in the absence of notice to the contrary, has the right to presume he has authority to act for and bind the company as to all matters within the scope of his duties as the. adjuster in the particular case, and such special adjuster, by denying all liability under the policy may waive the provisions of the policy, requiring [461] the assured to produce formal proofs of loss, as effectually as'could the general adjuster of the company.” In the case of the United States L. Ins. Co. v. Lesser, 126 Ala. 568, of recent impression in this court, is a full discussion of this subject in line with this and the former adjudications of this court. So it was, when this case was here, on a former appeal, we held that Adams, the party sent by the company with full power to make examination, investigation and adjustment of the loss, had authority to waive the conditions of the policy; and if, after full knowledge of the breach of its condition by the insured, he entered on an investigation and adjustment of the loss, treating the policy as valid and subsisting, the company thereby waived any defense it had against it by reason of the breach of its conditions. On this view of the case we held, that the demurrer to plaintiff’s replication to the. defendant’s second plea, was properly overruled. The reasons for this ruling are. fully set forth in the former opinion, to which Ave adhere. 2. In the transcript is also found an agreement of counsel, “that the only defense to tlm action is a breach of the proAdsions of the ‘Iron Safe Clause,’ no point being made on any other provision' or stipulation in the policy,” and the 'defendant’s counsel make substantially the same statement in their brief. It is undisputed, for’ the eAddence is AAdthout conflict to the effect, and admitted, by plaintiff, that there had been a breach of the Iron Safe Clanse, which defeated the action, unless the breach had been Avaived. by the defendant. The AAdiole trial, therefore, turned upon the question of the waiver, by one competent to make it, of the forfeiture of the policy in respect to the failure of plaintiff to keep his books as provided therein. We may therefore waive consideration of all pleadings in the cause, except as present these issues, viz., the defendant’s 2d plea as amended; the plaintiff’s replication number 2 thereto, and the defendant’s rejoinders numbers 2 ancl 3 to said replication. The evidence of plaintiff tended to support his replication number 2, and that for defendant, its. rejoinders 2 and [462] 3 thereto. 3. Refused charges numbered 1 and 2 were charges on the. effect of the evidence, which was in conflict, or from which different inferences might have been drawn, by the jury as to the matters on which the defense was based, and were, therefore, properly refused. Charges 3, 4 and 15 were calculated to mislead, and ■were properly refused, under the evidence in the, cause. Their-direct effect if given, would have been to impress the jury, that even if the defendant company had held ■out to the world that said agent had authority to waive the forfeiture, yet it would not be liable because of limitations upon this apparent power and authority which were uncommunicated and unknown to the plaintiff. They furthermore assume as true what is fairly contradicted by the secretary of the company, Wm. C. Ooart to Ben Lee Allen, the agent of the company at Athens. A sufficient reason for the refusal of charge 16 is found in the fact, that it is substantially the same as charge 7, given for the defendant. Charge 19 was faulty in assuming that there was no evidence of facts hypothesized, whereas, the plaintiff’s evidence tends to disapprove the assumption. Charges B. C. I), and E. given at the instance of plaintiff, assert correct propositions'of law, when considered in reference to the evidence in the cause, and were proper instructions. Affirmed.