Alabama Mutual Fire Insurance v. Minchener , 133 Ala. 632 ( 1901 )

ITARADSON, J.

A policy of insurance should designate the property, so that the subject insured and the risk may be determined. In case of doubt as to' AArhat property is covered, the construction will be against the insurer. — 2 Joyce on Insurance, § 1690.

Touching mistakes in the description of property insured, Mr. May observes that “knoAvledge of the company or its agents of the untruthfulness of the statements as to the distance,of neighboring buildings, or of inaccuracy or incompleteness in the description of the property, a.t the time AAdien the insurance is effected, by the. general* concurrence of-the more recent decisions, Avill estop the insurers from setting up such untruthfulness in defense.” — 1 May on Insurance, § 262. Again, the same author states the rule of modern decisions to be, that “a party who deals with an agent, through whom he applies for and obtains a policy, has a right to presume that such material facts as are made known to him, are known to the principal, and when policies are issued with a full knowledge of such facts, the insured is to suffer no prejudice, nor are the insurers to gain any advantage by insisting upon conditions which it would be dishonest to enforce.” — § 498.

In case of the insurance of a ship, which is as applicable to a house, it is said: “If both parties have in view the same vessel, and the underwriter, when the policy is issued, knows its true name, and it is intended to insure that particular ship, a mistake in the name of the vessel would not prevent a recovery for its loss, there being no fraud or concealment, and the contract being otherwise valid and complete.” — 2 Joyce on Ins., § 1445; Hughes v. Mercantile Ins. Co., 55 N. Y. 265.

In James Rivers Ins. Co. v. Merritt & Robertson, 47 Ala. 387, the plaintiffs stated verbally to defendant’s agent that they desired insurance on their saw mill and machinery, and told him where it was. The agent visited it for the purpose of examination and inspected it to his satisfaction, and afterwards wrote the application which the plaintiffs made. A loss occurred, and on suit for its recovery, the company defended on the ground that the insurance was obtained on the written application of plaintiffs, and there was a misrepresentation or concealment of the presence of a planing machine in the building insured, which was not included in the property insured. The court said that the agent visited the saw-mill for the purpose, of examination, and inspected it to his satisfaction. He saw the planing machine., and made inquiries about it. Afterwards, he wrote the application which the plaintiffs made. He insured other planing mills at the same rate. Upon this evidence the court held, that there was no error in a charge which instructed the jury that if defendant’s agent wrote the application and did so in- such form as to include the planing mill, and such was the intention of the plaintiff, Robertson, and the agent, then the defendant was liable for the insurance on the machinery including the planing mill.

On the examination of the insured, he was asked to “state whether or not this house known as the Williams place, on the east side of said street mehtioned by you (most commonly called Lake street, and which was called'also, Minchener street), was the house which you pointed out to the agent of defendant company, and told him this was the property you wanted him to- insure?” This question was objected to for that it called for illegal, irrelevant and immaterial evidence, and more especially, because the policy itself was the best evidence of what house was intended to be insured, and because the evidence called for tended-to prove the intention of the parties. The court allowed the witness to answer, that he pointed out said Williams house to the agent, and told him he wanted a policy of insurance on that house. There was no error' in the admission of this evidence. It tended to show,' which it was competent to do, that this particular house’-and no other, was the one 'the agent insured. If there was any indefinitérfess or uncertainty in the description, it was the act of defendant’s agent, and this evidence made the matter plain. — Guilmartin v. Wood, 76 Ala. 209; Syndicate Ins. Co. v. Catchings, 104 Ala. 176; Pope v. Glens Falls Ins. Co., 130 Ala. 356.

For the same reason, there was no error in allowing tlie witness, against the" objection of defendant, to an-SAver' in the affirmative, the question,' “Whether or not you and- the said Joseph Minchener, Jr., as the agent of defendant, then and there agreed upon and contracted for a |400 policy on said building and appurtenances, which policy Aras to run and be in force for three years from that date, and which Avas to be issued to you. in said company, and Avhich was subsequently issued to you, and AAdiich is the policy sued on in this case?”

There was no conflict in the evidence and it wms conceded that there Avas no controversy as to the right of the plaintiff to recover, if he Avas allowed to shoAV that the Williams house was the one intended by him and defendant’s agent to be insured.

The judgment beloAV must be affirmed.