The rejoinders were not directed to the plaintiff's replications "separately and severally," as were the demurrers in Home Ins. Co. of New York v. Scharnagel, 227 Ala. 60,148 So. 596, nor to "each and every" plea, as were the pleas in Barbour v. Shebor, 177 Ala. 304, 58 So. 276, but, as stated in the original opinion, they were addressed "to replications 2 to16, inclusive, and each of them separately and severally," and under the holding in Louisville Nashville Railroad Company v. Morgan, Adm'r, 114 Ala. 449, 22 So. 20, said rejoinders undertook to answer all of said pleas, and were not good as to some; therefore the demurrers thereto were properly sustained. If the defendant was not satisfied with the ruling of the court, its remedy was to amend the rejoinders so as to cure this defect.
The petitioner further strenuously insists that, to constitute a waiver of the right to declare a forfeiture for a violation of the provisions of the policy inserted for the insurer's benefit, there must be either a new consideration, or the insured must be misled to his hurt. This is not the law as applied to forfeitures.
In Alabama State Mutual Assurance Co. v. Long Clothing Shoe Co., 123 Ala. 667, 675, 26 So. 655, 658, it was observed: "A waiver may be founded upon an estoppel, but it is not so necessarily. Though the conduct of the insurer may not have actually misled the insured to his prejudice, or into an altered position, yet if, after knowledge of the all facts, its conduct has been such as to reasonably imply a purpose not toinsist upon a forfeiture, the law, leaning against forfeitures, will apply the peculiar doctrine of waiver, invented probably to prevent them, and will hold the insurer irrevocably bound asby an election to treat the contract as if no cause of forfeiture had occurred." (Italics supplied.) The doctrine of this case has been repeatedly reaffirmed. See Washburn, Adm'r, v. Union Central Life Insurance Co., 143 Ala. 485, 38 So. 1011; United States Life Insurance Co. v. Lesser, 126 Ala. 568,28 So. 646; Georgia Home Insurance Co. v. Allen, 128 Ala. 451,30 So. 537; State Life Ins. Co. v. Finney, 216 Ala. 562,114 So. 132; Great American Ins. Co. v. Dover, 219 Ala. 530,122 So. 658; Indemnity Company of America v. Pugh, 222 Ala. 251,132 So. 165.
In Belt Automobile Indemnity Ass'n v. Ensley Transfer
Supply Co., 211 Ala. 84, 87, 99 So. 787, 790, cited by the appellant, the court was dealing with an alleged liability not within the coverage of the policy, and it was there appropriately observed: "In such a case there is no field for the application of any doctrine of waiver or election, for original, primary obligations are not created in that way." (Italics supplied.) So the utterances in that case in respect to what is essential to create an estoppel are not apt here.
The same is true as to Huntsville Elks Club v. Garrity-Hahn Building Co. et al., 176 Ala. 128, 57 So. 750. The obligation there dealt with was a primary obligation arising from the breach of the building contract, and there was no occasion for an election by the defendant in that case.
The points raised by the application are therefore without merit, and the same will be overruled. It is so ordered.
Application overruled.