Pelican Insurance v. Smith , 107 Ala. 313 ( 1894 )

BBICKELL, O. J.

This case has been before the court at a former term, and the decision is reported. Pelican Insurance Co. v. Smith, 92 Ala., 428. The principle controlling the decision is, that the application for the insurance, and the policy, required from the applicant a full and truthful statement of the ownership of the property insured. If the applicant was acting as agent of his wife, the present plaintiff, having in himself no interest in the property, he was under the duty of stating the fact. Not having stated it, but having affirmed positively that he was the owner of the property — of the storehouse, the owner of the fee, the plaintiff could not recover on evidence that she was the owner, and that in taking the insurance he was acting as her agent. It is clear that the agent of the appellant taking the application, had no notice or information of the'title of the plaintiff, nor any reason to suppose that the applicant was acting for her, and not for himself solely. These are the controlling facts as they appeared from the evidence on the last trial, as they were the controlling facts of the record when the former decision was pronounced. Adherence to that decision, and to the indisputable principle on which it rests, compels a reversal of the judgment of the circuit court. Without considering the several assignments of error particularly, it is enough to say there was error in the refusal to give at the instance of the defendant the general affirmative charge.

Reversed and remanded.