Atlas Life Assur. Co. v. Moman

BROWN, J. (1) Under the issues formed by the plaintiff’s replications 11 and 12 to the defendant’s pleas 2, 9, and 10, a portion of the conversation between the plaintiff and McRae at the defendant’s office in the city of Birmingham at the time one ■of the premiums on the policy was paid, in which plaintiff told McRae, the defendant’s general agent, that the insured was sick at the time the policy was delivered, and was still sick at the time of the conversation, in response to which McRae stated that the company would carry out its contract, was clearly admissible, and the objection and motion going to the whole of this conversation was properly overruled.—Hill v. State, 146 Ala. 51, 41 South. 621. The substance of the issue presented by the ■eleventh replication was that one McRae, an agent of defendant, while acting within the line and scope of his authority, and with full knowledge of the real facts as to the insured’s physical condition, and that she was not in sound health, but was sick in bed when the policy was delivered to her, accepted the premiums on said policy and retained the same. And the substance of the twelfth replication was that the issuance of the insurance policy sued on was effected through defendant’s agent, one McRae, and that said agent, while acting within the line and scope of his [404] apparent authority, accepted premiums on said policy after he had notice of the fact that the insured was in unsound health at the time of the delivery of said policy. In interpreting the issue in the admission of the evidence, the court must necessarily be governed by the facts stated in the pleadings, and not the conclusions drawn from the facts stated.—Ragsdale v. Kinney, 119 Ala. 460, 24 South. 443. The testimony of the witness tending to show McRae’s knowledge of the illness of the insured at the time the policy was delivered, as well as at the time of the payment of the premiums, tended directly to prove these replications. (2) We are not to be understood as holding that the matters set up in the replications were good either as a waiver of the forfeiture or as an estoppel; the sufficiency of these replications were not tested by demurrer, so far as this record shows, and therefore their sufficiency in law is not presented.—Sloss-Sheffield S. & I. Co. v. Vinzant, 153 Ala. 212, 44 South. 1015. (3) It is no answer to this position that the policy contained a stipulation that: “Agents (which term includes superintendents or assistant superintendents) are not authorized and have no power to make, alter, or discharge contracts, waive forfeitures, or receive premiums on policies in arrears more than four months,” etc. In order for the defendant to obtain the benefit of this clause in the policy, it was necessary that it be pleaded by rejoinder in response to these replications, and by failing to plead the "stipulation the defendant waived it.—31 Cyc. 267 (V, B, 1) ; 11 Enc. P. & P. 421 (VII ,2) ; Id. 426 (&B) ; Fike v. Stratton, 174 Ala. 541, 559, 56 South. 929; Freeman v. Travelers’ Ins. Co., 144 Mass. 572, 12 U. E. 372; Boulden v. Liberty Ins. Co., 112 Ala. 490, 20 South. 526; Thompson v. Parker, 68 Ala. 387. (4) The twelfth replication does not assert that the agent was acting within the scope of his authority, but “while acting within the scope of his apparent authority,” and by taking issue on this replication without testing its sufficiency, the defendant accepted it as an answer to its pleas, and the fact that the agent was not authorized to waive forfeitures was not an answer to the replication.—Boulden v. Liberty Ins. Co., supra. (5) The rejoinders were only applied to plaintiff’s replications 8, 9, and 10, and were not tendered as an answer to replications 11 and 12, but issue was joined on these replications. Charges 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, and 20 [405] ignore the issues presented by the eleventh and twelfth replications, and were therefore properly refused.—Frierson v. Frazer, 142 Ala. 232, 37 South. 825; Ala. Steel & Wire Co. v. Thompson, 166 Ala. 460, 52 South. 75. While charge 12 may be abstractly correct, it clearly ignored some of the issues presented by the pleadings. (6) Charge 16 was well refused. The misrepresentation must have been of a material fact, and the misrepresentation must have been relied on, and the defendant deceived thereby. The evidnce adduced required a submission of all the issues to the jury, and the affirmative charges were properly refused to defendant. After a careful consideration of the evidence as applicable to the issues in this case, we do not feel warranted in holding that the court was not justified in refusing a new trial. Affirmed.