United States H. & A. Ins. v. Goin

ANDERSON, C. J. (1) The demurrers to counts 1 and 3 of the complaint were general and did not comply with the requirements of section 5340 of the Code of 1907, and whether the [587] counts were or were not subject to an appropriate demurrer, which we need not decide, the trial court will not be put in error for overruling the demurrers in question. — Allen v. Fincher, 187 Ala. 599, 65 South. 946; Francis v. Sandlin, 150 Ala. 585, 48 South. 829; L. & N. R. R. Co. v. Johnson, 162 Ala. 665, 50 South. 300; St. L. & S. F. R. R. Co. v. Phillips, 165 Ala. 504, 51 South. 638. (2) Whether the defendant’s special pleas 3, 4, 5, and 6 were or were not subject to the demurrer, which was sustained thereto, we need not decide, for if there was error, it was error without injury, as the defendant got the full benefit of the same under pleas 7 and 8, to which the demurrer was overruled, as the facts relied upon in said pleas 3, 4, 5, and 6 were not only provable under pleas 7 and 8, but the bill of exceptions shows that they were in fact proven. — Birmingham R. R. Co. v. Johnson, 183 Ala. 352, 61 South. 79; United States I. Co. v. Hill, 9 Ala. App. 222, 62 South. 954; Birmingham R. R. Co. v. Bush, 175 Ala. 49, 56 South. 731. Pleas 3 and 5 are substantially the same as plea 7, and pleas 4 and 6 are substantially the same as plea 8. (3) Replication 5, in substance, sets up a waiver by the defendant of the breach of warranty relied upon in pleas 7 and 8, by an acceptance of the premiums after a knowledge of the said breach. “The acceptance by an insurance company, with knowledge of facts authorizing a forfeiture or avoidance of the policy, of premiums or assessments which were in no degree earned at the time of such forfeiture or avoidance, constitutes a waiver thereof. This waiver is based on the estoppel of the company to declare void and of no eifect insurance for which, with knowledge of the facts, full compensation has been received.” — Cooley’s Briefs on Insurance, pp. 2684, 2685, and cases there cited. “In the absence of special stipulations restricting the power of agents, the knowledge of an agent having power to issue policies and collect premiums, followed by the acceptance of a premium, will be sufficient to amount to a waiver.” — Cooley’s Briefs on Insurance, p. 2696. (4) This replication was not subject to the defendant’s demurrer. The rejoinder to this replication 5 was subject to the demurrer interposed and which was properly sustained by the trial court. It set up restrictions as to the power and authority of the agent in and about the procurement of the policy and not [588] a limitation upon the agent to bind it by acts subsequent to the issuance of the policy. Moreover, such a restriction as would forbid the reception of premiums by agents, with full knowledge of the facts, from operating as a waiver of a right to declare a forfeiture for causes previously existing would probably be unreasonable, especially when the premium is collected by an agent who has authority to collect and receive same, but which point we need not decide. (5) We think that the proof established beyond dispute the plaintiff’s replication 5, and which entitled the plaintiff to a judgment, and this being the cáse, the action of the trial court in overruling demurrer to replications 2 and 6, whether error or not, was without injury, as the result would be the same whether these two replications were in or out. (6) The proof showed that Williams was the defendant’s district manager, and that he received the premiums, wrote applications, and ádjusted and settled losses. “The business of an insurance company is, of necessity, carried on by its officers and agents. The company and its agents and officers are, in law, one and the same as to all transactions within the scope of the authority of the officers and agents, and their acts are imputable to the company. As a general proposition, it may be said that knowledge of an agent of an insurance company, as to matters within the general scope of his authority, is the knowledge of the company, and it is bound thereby.— Cooley’s Briefs on Insurance, vol. 3, p. 2520. (7, 8) The trial court will not be put in error for overruling the objection to the introduction of the policy, because of a variance. The appellant did not call the attention of the court to the point or fact constituting the variance as required by circuit court rule 34 (175 Ala. xxi). Moreover, there was no variance between the policy and count 1, and the objection did not confine the policy to the count under which there was a variance. We do not think that the conclusion reached by the trial court was erroneous, but think that it rendered the only judgment that was authorized by the pleading and proof. There were many objections and exceptions to the rulings upon the evidence, and after a careful consideration of same we are of the opinion that the trial court committed no reversible error in this respect, but will refrain from a discussion of these [589] questions as it can serve no good purpose by incumbering the books with a rehash of elementary rules of evidence. The judgment of the city court is affirmed. Affirmed. Mayfield, Somerville, and Thomas, JJ., concur.