Phœnix Insurance v. Copeland , 86 Ala. 551 ( 1888 )

STONE, C. J.

The trial court sustained plaintiff’s demurrers to pleas numbered from 3 to 7, inclusive. In pleas 9, 10, and 11, defendant set up, and with fuller statement of facts, all the defenses which had been attempted to be made in pleas 3 and 7. Demurrers to pleas 9, 10, and 11 were overruled, and under tbem tbe defendant had the benefit of every defense he could have made under pleas 3 to 7. We need not consider the propriety of the court’s ruling in sustaining plaintiff’s demurrers noticed above. If error, it was error without injury.—3 Brick. Dig. 405, § 20.

The Circuit Court sustained demurrers to pleas 8 and 12. The testimony shows there was nothing in them, and we will not consider them.

To pleas Nos. 9, 10 and 11, plaintiff filed three replications, to which there were demurrers. The Circuit Court sustained the demurrer to replication No. 1, and overruled it as to those numbered 2 to 3. Issue was then formed on the complaint as filed, pleas numbered 1, 9, 10 and 11, and replications numbered 2 and 3. The judgment overruling defendant’s demurrer to replications 2 and 3, is the subject of separate assignments of error.

Replication No. 2 asserts that, after the burning, Copeland, the plaintiff, contemplated purchasing from Mrs. Roberts, the assured, the policy and the claim of compensation for the loss suffered by the fire; and before purchasing he consulted Jackson, defendant’s agent, through whom the policy had been obtained. It avers that Jackson informed him the policy was all right, and that the loss would be paid; and that on the strength of such assurance he purchased the policy, and paid value for it. It avers further that Jackson “had authority to make such representation, and to bind the defendant by said representation.”

The clause copied from the replication No. 2 constitutes it a complete answer to the defenses relied on. Qui facit per alium, facit per se. If the corporation had represented to Copeland that the policy was valid, and that the loss would be paid, and Copeland, on the strength of it, purchased the policy, parting with value for it; this would have estopped the corporation from setting up the defenses relied on. But, to bring the case within this principle, Copeland must have made known the purpose for which he made the inquiry. This the replication sufficiently avers. — -.3 Brick. Dig. 448, §§ 31, 33, 34. But the fact that Jackson was soliciting agent for the company, through whom the insurance was obtained, would not, of itself, bind the company by admissions made by him, not contemporaneous and connected with some authorized act of agency. Authority to solicit and place insurance, would not, without more, confer power to bind the company by the alleged admission. It would require the equivalent of express authority to confer such power.—Queen Ins. Co. v. Young, ante, p. 424; 5 So. Rep. 116.

Replication No. 3 avers that, in soliciting and obtaining the insurance, Roberts represented and acted for his wife; and that before obtaining the insurance, he laid before Jackson the soliciting agent, the papers showing the nature and' extent of the incumbrances resting on the property, and that with full information on the subject, Jackson procured the policy to be issued. This, if true, brought home to Jackson’s knowledge the true condition of the title, contemporaneously with the acts done by him in placing the insurance. Jackson was agent for the insurance company, not for Mrs. Roberts ; and if the company was in this way deceived in granting the policy, in contravention of their rules as to the state of the title, it could not defend against liability on that account.—P. & A. Life Ins. Co. v. Young, 58 Ala. 476; Com. Fire Ins. Co. v. Allen, 80 Ala. 571; Ala. Gold Life Ins. Co. v. Mobile Mut. Ins. Co., 91 Ala. 329, and authorities on the briefs of counsel.

We find no available errors in the rulings on demurrer. While we hold the second replication to be sufficient as pleaded, it will be utterly worthless, if there is a failure to show Jackson’s authority to bind the company by the admission he is alleged to have made. The other insurance on the dwelling will then become a controlling question in the case. It is not pretended that Jackson, or the company, was notified of this. If that insurance in fact existed, and if the estoppel is not made good under the rules declared above, then the failure to notify Jackson or the company of its existence is fatal to this suit. If Roberts and Mrs. Roberts did not know of its existence, it was their duty to inform themselves, and thus have avoided all excuse for asserting there was no other insurance on the property. Munroe v. Pritchett, 16 Ala. 185; Claghorn v. Lingo, 62 Ala. 230.

In the rulings on the admission and rejection of testimony the Circuit Court committed errors. Whether Jackson had authority to bind the company by the statement he is alleged to have made to Copeland, to the effect that the company conceded its liability for the loss, and agreed to pay it, was one of the inquiries of fact which the pleadings raised. He should have been allowed to testify as to the extent of his powers. So, the value of the house, and what it would have cost to replace it, were pertinent inquiries. The policy reserved to the insurance company the option of rebuilding, and made the cost of such re-building one of the criteria of liability in case of loss. The witness Stevens, if ■ believed, showed himself tobe an expert; and the pillars and marks on the chimneys left standing, enabled him to determine the dimensions of the house. He should have been allowed to testify as to its value, and the cost of rebuilding it, as matter of judgment, if he had heard its description by other witnesses, and as matter of skilled opinion, when submitted to him hypothetically.

The question asked Walker, on cross-examination, should have been allowed. Much latitude is- indulged on cross-interrogation of a witness, for the purpose of testing his accuracy and impartiality. Cross-examination with a view to direct impeachment is not the limit of the right. Many questions may be put, which can not be made the ground of impeachment by disproof of the truth of the answer the witness may make.—3 Brick. Dig. 829, § 111.

So, in regard to the watch. Two witnesses testified, that Boberts drew out his watch, and told them the time of night. That was a collateral circumstance, and immaterial to the main inquiry. Yet, it was competent for Boberts, in his testimony, to deny it; and as giving it emphasis, to say he had no watch. This, however, did not justify proof by Eady, that Boberts did not own a watch. It was, at best, but an attempt to sustain Boberts and to impeach the opposing witnesses, by attacking a part of their testimony that was not material to the issue.—3 Brick. Dig. 828, § 101.

Beversed and remanded.