National Casualty Co. v. Dunn

96 So. 576, 209 Ala. 484, 1923 Ala. LEXIS 507

• Court: Supreme Court of Alabama
• Decided: April 26, 1923
• Docket: 3 Div. 604.
• Status: Published

Opinions

SOMERVILLE, J.

It is clear that the evidence did not support plaintiff’s replication 2, alleging that he gave notice of his illness as soon as it was reasonably possible for him to do so.

It is equally clear that, regardless of the assumption of Walker’s agency for defendant for the purpose of adjusting plaintiff’s claimj the evidence does not show a denial by defendant of all liability on the policy, as alleged in replication 4-

But, evidence of Walker’s agency having been admitted, the issue under replication 3 could not properly be withdrawn from the jury, and the general affirmative charge for plaintiff was properly refused.

The real question,’ therefore, is upon the admission of the testimony of plaintiff tending to show; Walker’s agency. An examination of this testimony discloses nothing but the hearsay statements and the conduct of Walker to show such agency, which, without independent evidence of the fact of agency, were not admissible in evidence. Postal Tel. Co. v. Lenoir, 107 Ala. 640, 643, 18 South. 266, and cases therein cited.

Nevertheless, unless seasonably and properly objected to, such hearsay evidence was sufficient to support an affirmative finding by the jury that Walker was the agent of defendant, and was authorized to adjust plaintiff’s claim, and bind defendant by his conduct in the premises.

The bill of exceptions shows only three exceptions taken by defendant to rulings on plaintiff’s testimony as to agency. In the first instance, there was no objection to the question,' but only a motion to exclude the answer, which was responsive to the question; and no ground of objection was stated to the court. In the second instance, there was seasonable objection to the question, but no ground of objection was stated. In the third instance, there was no objection to the question, but only a motion to exclude tlie answer.

The rule is well settled that a motion to exclude a responsive answer may be overruled without error, where there was no objection to the question. Rutledge v. Rowland, 161 Ala. 114, 123, 49 South. 461. And, also, that where the subject of a question is relevant to the issues, a merely general objection may be properly overruled. Gilley v. Denman, 185 Ala. 561, 64 South. 97; Womack v. Myrick Lbr. Co., 200 Ala. 591, 76 South. 949.

For these reasons we cannot put the trial court in error with respect to the testimony in question.

Let the judgment be affirmed.

Affirmed.

ANDERSON, O. J., and McCLELLAN and THOMAS, JJ., concur.'