Schloss v. Westchester Fire Insurance

Supreme Court of Alabama

Schloss v. Westchester Fire Insurance

37 So. 701, 141 Ala. 566

CourtSupreme Court of Alabama

DecidedNovember 15, 1904

StatusPublished

Cited by6 cases

This text of 37 So. 701 (Schloss v. Westchester Fire Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Schloss v. Westchester Fire Insurance, 37 So. 701, 141 Ala. 566 (Ala. 1904).

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Opinion

SHARPE, J.

Conditions in policies of insurance against alienation of the insured property are ordinarily construed as intended to provide only against changes in ownership which might supply a motive to- destroy the property cr which would weaken the interest of the insured in protecting it; hence dealings with the- property not calculated to produce any such effect do not, by reason of such conditions, avoid the policy. — 1 May on Insurance, § 273; Ostrander on Insurance, (2nd ed.) p. 264; Biddle on Insurance, § 206; Russell v. Cedar Rapids Insu. Co., 78 Iowa, 176; 85 Am. Dec. 553; German Insu. Co. v. Gide, 59 Ill. App. 614; Lane v. Maine Mut. Fire Insu. Co., 3 Fair (Me.) 44.

Replications A, B, C and Ú each purport to- show that the sale by Morris the insured, alleged in pleas 2, 3, 6, 9, 10, 11 and 12, respectively, was without any change of possession and was attended immediately in the same transaction by a resale of the property, which at the close of the transaction left Morris with the same title and interest he had at its beginning. This was not an .alienation which could have had effect to prejudice the defendant in respect of the risk assumed by the policy, or one amounting to a change of title, interest or possession within the meaning of that clause of the policy which provided such change to be rendered the company within sixty days after the fire. The demurrers to these replications -should have been overruled.

On th issue as to whether proof of loss was furnished within sixty days from the fire in accordance with the terms of the policy there was evidence that such proof was on the sixtieth day after the fire, left with Wilson, Adams & Co., the defendant’s agents at Greenville and was by them mailed on the same day to defendant’s special agent at Atlanta where they were due to arrive about the end of that day; that Wilson, Adams & Co., held a commission in writing whereby they were in terms [575]*575authorized to receive proposals for and make insurance' by policies of defendant to be countersigned by them, to renew the same, to assent to assignments and transfers and “to perform all lawful acts and business of such agency, subject to rules and regulations of the company and such instructions as may be given them from time to time by its officers or general agents.” There was evidence also that defendant bad issued an advertisement óf its business on a blotting pad on which was printed the words “Wilson, Adams & Co., Agents, Greenville, Ala.,” that these agents issued this policy and collected premiums thereon, that they had in possession blanks for proofs of loss and furnished plaintiff’s attorney with the blanks on which this proof was made and that the attorney had by defendant’s adjuster been referred to these agents as persons who might furnish such blanks. This evidence ivas not incapable of affording an inference that Wilson, Adams & Co., in receiving the proof of loss were acting within the scope of their authority, and was- therefore sufficient to carry this question as one of fact to the jury. See Syndicate Insu Co. v. Catchings, 104 Ala. 176; McCullough v. Phoenix Insu. Co. of Hartford, 21 S. W. Rep. 207.

The assignments of error based on demurrers to pleas have not been insisted on by argument and are therefore not considered.

Reversed and remanded:

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SHARPE, J.

Conditions in policies of insurance against alienation of the insured property are ordinarily construed as intended to provide only against changes in ownership which might supply a motive to- destroy the property cr which would weaken the interest of the insured in protecting it; hence dealings with the- property not calculated to produce any such effect do not, by reason of such conditions, avoid the policy. — 1 May on Insurance, § 273; Ostrander on Insurance, (2nd ed.) p. 264; Biddle on Insurance, § 206; Russell v. Cedar Rapids Insu. Co., 78 Iowa, 176; 85 Am. Dec. 553; German Insu. Co. v. Gide, 59 Ill. App. 614; Lane v. Maine Mut. Fire Insu. Co., 3 Fair (Me.) 44.

Replications A, B, C and Ú each purport to- show that the sale by Morris the insured, alleged in pleas 2, 3, 6, 9, 10, 11 and 12, respectively, was without any change of possession and was attended immediately in the same transaction by a resale of the property, which at the close of the transaction left Morris with the same title and interest he had at its beginning. This was not an .alienation which could have had effect to prejudice the defendant in respect of the risk assumed by the policy, or one amounting to a change of title, interest or possession within the meaning of that clause of the policy which provided such change to be rendered the company within sixty days after the fire. The demurrers to these replications -should have been overruled.

On th issue as to whether proof of loss was furnished within sixty days from the fire in accordance with the terms of the policy there was evidence that such proof was on the sixtieth day after the fire, left with Wilson, Adams & Co., the defendant’s agents at Greenville and was by them mailed on the same day to defendant’s special agent at Atlanta where they were due to arrive about the end of that day; that Wilson, Adams & Co., held a commission in writing whereby they were in terms [575]*575authorized to receive proposals for and make insurance' by policies of defendant to be countersigned by them, to renew the same, to assent to assignments and transfers and “to perform all lawful acts and business of such agency, subject to rules and regulations of the company and such instructions as may be given them from time to time by its officers or general agents.” There was evidence also that defendant bad issued an advertisement óf its business on a blotting pad on which was printed the words “Wilson, Adams & Co., Agents, Greenville, Ala.,” that these agents issued this policy and collected premiums thereon, that they had in possession blanks for proofs of loss and furnished plaintiff’s attorney with the blanks on which this proof was made and that the attorney had by defendant’s adjuster been referred to these agents as persons who might furnish such blanks. This evidence ivas not incapable of affording an inference that Wilson, Adams & Co., in receiving the proof of loss were acting within the scope of their authority, and was- therefore sufficient to carry this question as one of fact to the jury. See Syndicate Insu Co. v. Catchings, 104 Ala. 176; McCullough v. Phoenix Insu. Co. of Hartford, 21 S. W. Rep. 207.

The assignments of error based on demurrers to pleas have not been insisted on by argument and are therefore not considered.

Reversed and remanded:

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37 So. 701, 141 Ala. 566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schloss-v-westchester-fire-insurance-ala-1904.

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