Prine v. American Central Ins.

ANDERSON, J. The Code form (No. 13) upon a fire insurance policy implies an action by the assured, and, where the complaint names some one other than the assured as plaintiff, it must set up facts showing how and in what right the plaintiff is entitled to sue upon or for a breach of the policy contract.—Feibelman v. Manchester Co., 108 Ala. 180, 19 South. 540; Nortwich Ins. Co. v. Prude, 145 Ala. 297, 40 South. 322; Continental Ins. Co. v. Parks, 142 Ala. 650, 39 South. 204 Counts 2, 2a, 2b, 5a, and 5b, all set out L. L. Prine, and not the plaintiff, as the assured in the policy and fail to set up such title, right, or interest of the plaintiff in the policy contract or the subject-matter thereof as would authorize her to recover, and the demurrers thereto were properly sustained. [348] As indicated by counts 2a and 5a as last amended, and the sufficiency of which we cannot determine, as the demurrer thereto was overruled in favor of the appellant, this case was tried upon the theory that the plaintiff was the real assured in the policy contract and the party to same, but the name of her husband, L. U. Prine, was inserted, as assured,, by mistake. It seems to have been held in the case of Taylor v. Strickland, 37 Ala. 642, that where an obligation to pay money is made to a person by a wrong name, the intended payee may sue upon it in his right name, alleging that it was made pay: able to him by the name therein inserted; and he may show by evidence on the tidal, that he was the person intended. This case has been approved in the cases of Wood v. Coman, 56 Ala. 291, and Brown v. Johnson, 42 Ala. 210. Whether or not the rule there established could be applied to the policy contract in question, in a court of law, instead of resorting to a bill in equity for a reformation of same, we are not called upon to determine, as the trial court, in effect, ruled that it could be so applied, and which said ruling was favorable to the appellant and we must therefore, consider the case under the issues made by the pleading. The second replication to plea 2, if not otherwise bad, was insufficient in attempting to relieve the plaintiff of the things charged in the plea, by the action or conduct of the agent Grace, and for failure to aver such authority in Grace as would bind the defendant in the particulars therein set forth. The mere authority of an agent to “solicit insurance, receive and receipt for premiums, does not give said special agent the authority to estop the company from relying upon the terms of its written contract.” — Alabama Assurance Co. v. Long, 123 Ala. 667, and cases cited on page 677, 26 South. 655. [349] If the record purported to set out all the evidence, we would not he disposed to reverse the judgment of the trial court upon the conclusion on the facts. The evidence, and especially that of L. L. Prine on cross-examination, • fails to show that the plaintiff was intended-as the assured in the policy contract. Nor does-the evidence show an estoppel by Moore’s attempt to collect the premiums. In the first place, it is questionable if Moore had the authority to estop the defendant, and second; the first replication avers, that Moore “insisted upon the payment by L. L. Prine, as agent of the plaintiff, of the unpaid balance of the premium for the insurance.” and the proof does not show that the insistence was made to L. L. Prine, as the agent of his wife, the plaintiff. On the other hand, we find L. L. Prine, through his attorneys, attempting to adjust the- claim as that of L. L. Prine. If however, such of the evidence, as is before us, was different, we could not disturb the conclusion on the facts, as the hill of exceptions does not purport to set out all the evidence. The plaintiff’s theory of the case was that the policy was intended to be in her favor, but was by mistake made in favor of her husband. She relied, to a great extent, upon the knowledge of Grace as to the circumstances and surroundings leading up to the issuance of the policy, and whether or not Grace had or had not informed Moore that L. L. Prine was married, would be a very material factor in determining whether or not the plaintiff was intended as the real assured. If Moore did not know that L. L. Prine was married, when the application was received and the policy was issued and approved, it would he a strong circumstance going to show that the plaintiff was not intended as the real party to the policy contract, and the fact, that Grace did not inform him that L. L. Prine had a wife is a circumstance [350] showing that Moore did. not know of the plaintiff’s existence during the negotiation of the contract, and did not therefore intend to issue the policy to her instead of L. L. Prine. True, it is usually incumbent upon a party who relies upon notice to show it, but the mile does not prevent the other party from denying notice, especially when it might be inferred that Grace informed Moore of all information he had as to the parties and Moore had the right to show that Grace did not tell him that L. L. Prine was a married man. The judgment of the law and equity court is affirmed. Affirmed. Dowdell, C. J., and Siayrb and Somerville, JJ., concur.