Union Central Life Insurance v. Washburn

DENSON, J. The principles of law controlling the pleadings in this case were determined on former appeal. —Washburn v. Union Central Life Insurance Co., 143 Ala. 485, 38 South. 1011. Since the remandment of the cause two additional pleas, 4 and 5, have been filed by tile defendant. The fourth plea, like the second and third, sets up the defense of forfeiture of the policy sued on. Replications 17 to 24, inclusive, which had been filed to pleas 2 and 3, were also filed to plea 4. In principle, no new question is raised by this last plea, different from those considered when the case was here before. The fifth plea is one of set-off. The real issue in the case is that of waiver vel non of the forfeiture pleaded, which is raised by the replication to the pleas setting np this defense. In the several replications the waiver of the forfeiture is pleaded in different ways; but this does not impose upon the plaintiff the duty of supporting by the evidence all of the replications in order to a recovery. It is sufficient answer to the pleas of forfeiture, if any one of the replications setting up waiver is established. It is needliess to repeat here what was said on former appeal as to the law in respect of forfeiture and the waiver thereof in such cases, and we content ourselves in referring to that case for what was then said. The present case was tried by the court below without a jury, and on the facts in evidence a judgment was rendered. in favor of the plaintiff. Upon the introduction of evidence on the trial many objections were made and exceptions reserved to the rulings of the court. These exceptions are not discussed in detail by counsel in their briefs, nor do we find it necessary to so treat them in this opinion. Under the issues made by the replications, the evidence of any fact or circumstance which fended, though slightly, to show a waiver of the alleged forfeiture by the defendant, was competent and legal. [172] Along this line the documents designated in the record as “B,” “C,” “E,” “H,” “I,” and “J” were admissible in evidence. It was shown that they, together with the.policy sued on, were found among the papers of the insured at the time of his death. They purported to have emanated from E. H. Andrews, the general agent of the defendant company at Birmingham, Ala., and with no other indicia or marks than that of genuineness. The evidence, attending the introduction of these papers, of the custom of General Agent Andrews to use a rubber stamp in affixing his signature, was permissible, going to show the authenticity of these documents, which bore his signature affixed in this manner. The evidence without dispute showed that E. H. Andrews was the general agent of the defendant company, and as such had the general management and control of all of the business of the defendant in the state of Alabama. In a sense he was the alter ego of the defendant in this state. As a question of law there can be no doubt of his authority to bind the defendant by a waiver of the forfeiture, and this either expressly or by his acts and conduct. The letters designated “I” and “J,” which were written and sent to the insured after the date of default in the payment of the premium note, the said default being the time of the alleged forfeiture, we think, clearly indicated a purpose to waive and not to claim a forfeiture; and the law is the waiver is irrevocable when once made. On the legal evidence in the case, and in which there was no conflict, the trial court, who heard the cause without a jury, was justified in the conclusion that there had been a waiver by the defendant of the alleged forfeiture, and in rendering judgment for the plaintiff. This being-true, it may be conceded that the court committed errors in the admission of other evidence that was irrelevant and illegal, without affecting the conclusion reached, [173] since under the settled law of this court, in such a case, where thé trial court acts as both court and jury, the error is absque injuria. The rule is thus stated in First National Bank v. Chaffin, 118 Ala. 259, 24 South. 84: “If illegal evidence has been admitted, the judgment must be reversed, unless the remaining evidence is without conflict and supports the judgment.” Such is the case before us. Eliminating all illegal .evidence, the remaining evidence Avitliout conflict supports the judgment. The judgment, hoAvever, must be corrected. Under the plea of set-off the defendant was entitled to a credit of the amount of the unpaid premium note. This was provided for in the contract on which the plaintiff sues, and it was not required to be presented to the plaintiff, as administrator of the insured, to save it from the bar of the statute of non-claim as a credit on the policy. With this correction, the judgment will be affirmed. Corrected and affirmed. Haralson, Simpson, and McClellan, JJ., concur.