McCLELLÁN, C. J.
— The second count avers that the . money claimed is clue. It is not open to the objection tdken by the demurrer for its failure to aver in terms that satisfactory proofs of the death of the insured were made ninety days before the bringing of the suit. If proofs df death had not been furnished seasonably before suit, it was matter for plea in abatement. And moreover, the evidence is free from conflict that such proofs Avere furnished ninety days before the action Avas begun, and had the ruling been erroneous it did not injure the appellant. '
It was not necessary for the second count of the complaint, which set out the policy, to aver that the defendant had money in its mortuary fund sufficient to pay the loss, nor to set out the representations, agreements and Avarranties referred to in the policy and aver that the representations were true and that the agreements and warranties had been kept and complied with. All these were matters of defense, as Avas also the insured’s failure, if he did'fail, to pay assessments and mortuary calls. — 11 Enc'y. Pl. & Pr., 415.
' One of the defenses mainly relied on is that the insured made a false representation or warranty in his application for insurance as to his occupation. It is averred in the pleas that the insured, Williams, Avar-ranted that the statements made in his application were true and that they Avere offered to the defendant as a consideration for the policy sued on, that the application was signed by Williams, and that therein, in answer to a [143]*143question as ‘to'what was his occupation, he stated that he was “foreman of B. E: yard,” that said answer was untrue, that Williams was not foreman of á railroad yard, blit was in fact foreman of a switching crew in a railroad yard. It is also avérred — and there is conflict-' ing evidence on the point — that there is in railroad service'organization a position known as foreman óf rail-' road'yard, and that it is less házardous than that of'foreman of a switching crew in a railroad yard. To these pleas the plaintiff replied as follows: That J. A.' Mc-Gluskey, who was the agent of the defendant to solicit persons to apply for insurance in the defendant -company, applied to Williams to take out insurance in said company for $1,000, and called upon him to make answer to ' several questions in a' printed application there, produced by said McCluskey; and amongst others was the question as to what was the occupation of the said Williams, “that the said McCluskey filled out at the time in his own hand-writing the answers before the said Williams signed said application., that the said McCluskey for answer to the said question as to what was Williams’ occupation wrote, ‘Foreman of E. E. yard,’ when in fact the said Williams said to McCluskey as his answer to the question in regard to his occupation ,that he was ‘foreman;’ that shortly prior to the writing of said application, when engaged in soliciting said William to take out said insurance, either on that day or the day before, said Williams had toid' McCluskey that he was foreman of the switch crew in the railroad yard, and that McClus-key had in fact .been with said Williams while he had been in the discharge of his duties as such foreman of the switch'crew but a short time before the writing out of said application and well knew when the application was made that the said Williams was engaged in the employment of said railroad company as foreman of said switching crew.” The sufficiency of this replication was challenged by demurrer on the ground that it did not negative fault on the part of Williams in signing and delivering the application containing the erroneous statement, written therein by McCluskey, that he was “foreman of E. E. yard,” one of the assignments of demurrer being this: “Because said replication does not [144]*144aver‘that the said Williams did not know that'his answer to'said'-question as to what was his occupation was written down ‘foreman of R. R. yard’ when he signed said application.” The objection misconceives the replication ■ and the principles of law underlying it. The theory of the replication is not that the agent without Williams’ knowledge wrote down a mis-statement in the application and sent it to the company, but is that the agent, McClnskey, and through him the company knew the truth as to Williams’ occupation and in the absence of fraud or fault on Williams’ part are to be held to have contracted with reference to that knowledge and not With reference to a statement made by the agent in the application inconsistent with that knowledge, and that Williams was not at fault in respect of the statement, but that his answer was a truthful one, and, in view of McCluskey’s previous knowledge of his occupation, was sufficiently full and accurate — such a one as any ordinary man' would have made- under the circumstances; and that, beihg aware that the agent had full knowledge of his occupation, Williams had a right to assume not only' that he would write down the fact correctly, but also that when the agent wrote down “foreman of R. R. yard” that was such a statement of his occupation as was proper to be made in the application, and was true and correct. It is therefore immaterial whether Williams knew his'occupation had been so stated in the application when he signed it. The agent knew all the facts as to his1 occupation. -He is presumed to know better than Williams how 'the facts should be stated in the application. Williams had a' right to rely upón his making a correct statement of them, and the statement that he was foreman of R. R. yard, having been written down Williams had a right to rely upon it that that for the purposes of the business in hand was the correct and truthful statement.' Of course (there might • be such glaring, repugnance between the fact and the statement in a given case that the applicant’s failure to correct the statement would be evidence of fraud on his part; but this is not such case. Here Williams was a foreman in a railroad yard. He was, it is true, not foreman of'the yard, but he was foreman of an engine and switching [145]*145crew working in the yard, and the evidence is free from conflict to show that there was no other sort of foreman in that yard, and it tends to show that there was no other sort of foreman in any railroad yard. The fact that he allowed to pass unchallenged the statement of the agent that he was foreman of E. E. yard with full knowledge of it does not tend to show fault or fraud on his part. To the extent there might be difference and discrepancy between the fact and the statement he had a right to rely upon the better knowledge of the agent as to what statement for the purposes of this occasion correctly set forth his occupation. Upon the ground therefore that the company knew what Williams’ occupation was and that he was not at fault in respect of the statement made in the application for that he was justified in assuming its correctness, his knowledge that the statement was embraced in the application he signed, is immaterial and the demurrer to the replication was well overruled.—Alabama Gold Life Ins. Co. v. Garner, 77 Ala. 210; Sellers v. Commercial Fire Ins Co., 105 Ala. 282; Creed et al. v. Sun Fire Office, 101 Ala. 522; Williamson v. New Orleans Ins. Asso’n, 84 Ala. 106.
But the knowledge or notice of the company itself on the facts set up in the replication was constructive merely; it did not have actual knowledge that Williams was the foreman of a switching crew, but the agent’s knowledge on this subject is imputed to it.
Free access — add to your briefcase to read the full text and ask questions with AI
McCLELLÁN, C. J.
— The second count avers that the . money claimed is clue. It is not open to the objection tdken by the demurrer for its failure to aver in terms that satisfactory proofs of the death of the insured were made ninety days before the bringing of the suit. If proofs df death had not been furnished seasonably before suit, it was matter for plea in abatement. And moreover, the evidence is free from conflict that such proofs Avere furnished ninety days before the action Avas begun, and had the ruling been erroneous it did not injure the appellant. '
It was not necessary for the second count of the complaint, which set out the policy, to aver that the defendant had money in its mortuary fund sufficient to pay the loss, nor to set out the representations, agreements and Avarranties referred to in the policy and aver that the representations were true and that the agreements and warranties had been kept and complied with. All these were matters of defense, as Avas also the insured’s failure, if he did'fail, to pay assessments and mortuary calls. — 11 Enc'y. Pl. & Pr., 415.
' One of the defenses mainly relied on is that the insured made a false representation or warranty in his application for insurance as to his occupation. It is averred in the pleas that the insured, Williams, Avar-ranted that the statements made in his application were true and that they Avere offered to the defendant as a consideration for the policy sued on, that the application was signed by Williams, and that therein, in answer to a [143]*143question as ‘to'what was his occupation, he stated that he was “foreman of B. E: yard,” that said answer was untrue, that Williams was not foreman of á railroad yard, blit was in fact foreman of a switching crew in a railroad yard. It is also avérred — and there is conflict-' ing evidence on the point — that there is in railroad service'organization a position known as foreman óf rail-' road'yard, and that it is less házardous than that of'foreman of a switching crew in a railroad yard. To these pleas the plaintiff replied as follows: That J. A.' Mc-Gluskey, who was the agent of the defendant to solicit persons to apply for insurance in the defendant -company, applied to Williams to take out insurance in said company for $1,000, and called upon him to make answer to ' several questions in a' printed application there, produced by said McCluskey; and amongst others was the question as to what was the occupation of the said Williams, “that the said McCluskey filled out at the time in his own hand-writing the answers before the said Williams signed said application., that the said McCluskey for answer to the said question as to what was Williams’ occupation wrote, ‘Foreman of E. E. yard,’ when in fact the said Williams said to McCluskey as his answer to the question in regard to his occupation ,that he was ‘foreman;’ that shortly prior to the writing of said application, when engaged in soliciting said William to take out said insurance, either on that day or the day before, said Williams had toid' McCluskey that he was foreman of the switch crew in the railroad yard, and that McClus-key had in fact .been with said Williams while he had been in the discharge of his duties as such foreman of the switch'crew but a short time before the writing out of said application and well knew when the application was made that the said Williams was engaged in the employment of said railroad company as foreman of said switching crew.” The sufficiency of this replication was challenged by demurrer on the ground that it did not negative fault on the part of Williams in signing and delivering the application containing the erroneous statement, written therein by McCluskey, that he was “foreman of E. E. yard,” one of the assignments of demurrer being this: “Because said replication does not [144]*144aver‘that the said Williams did not know that'his answer to'said'-question as to what was his occupation was written down ‘foreman of R. R. yard’ when he signed said application.” The objection misconceives the replication ■ and the principles of law underlying it. The theory of the replication is not that the agent without Williams’ knowledge wrote down a mis-statement in the application and sent it to the company, but is that the agent, McClnskey, and through him the company knew the truth as to Williams’ occupation and in the absence of fraud or fault on Williams’ part are to be held to have contracted with reference to that knowledge and not With reference to a statement made by the agent in the application inconsistent with that knowledge, and that Williams was not at fault in respect of the statement, but that his answer was a truthful one, and, in view of McCluskey’s previous knowledge of his occupation, was sufficiently full and accurate — such a one as any ordinary man' would have made- under the circumstances; and that, beihg aware that the agent had full knowledge of his occupation, Williams had a right to assume not only' that he would write down the fact correctly, but also that when the agent wrote down “foreman of R. R. yard” that was such a statement of his occupation as was proper to be made in the application, and was true and correct. It is therefore immaterial whether Williams knew his'occupation had been so stated in the application when he signed it. The agent knew all the facts as to his1 occupation. -He is presumed to know better than Williams how 'the facts should be stated in the application. Williams had a' right to rely upón his making a correct statement of them, and the statement that he was foreman of R. R. yard, having been written down Williams had a right to rely upon it that that for the purposes of the business in hand was the correct and truthful statement.' Of course (there might • be such glaring, repugnance between the fact and the statement in a given case that the applicant’s failure to correct the statement would be evidence of fraud on his part; but this is not such case. Here Williams was a foreman in a railroad yard. He was, it is true, not foreman of'the yard, but he was foreman of an engine and switching [145]*145crew working in the yard, and the evidence is free from conflict to show that there was no other sort of foreman in that yard, and it tends to show that there was no other sort of foreman in any railroad yard. The fact that he allowed to pass unchallenged the statement of the agent that he was foreman of E. E. yard with full knowledge of it does not tend to show fault or fraud on his part. To the extent there might be difference and discrepancy between the fact and the statement he had a right to rely upon the better knowledge of the agent as to what statement for the purposes of this occasion correctly set forth his occupation. Upon the ground therefore that the company knew what Williams’ occupation was and that he was not at fault in respect of the statement made in the application for that he was justified in assuming its correctness, his knowledge that the statement was embraced in the application he signed, is immaterial and the demurrer to the replication was well overruled.—Alabama Gold Life Ins. Co. v. Garner, 77 Ala. 210; Sellers v. Commercial Fire Ins Co., 105 Ala. 282; Creed et al. v. Sun Fire Office, 101 Ala. 522; Williamson v. New Orleans Ins. Asso’n, 84 Ala. 106.
But the knowledge or notice of the company itself on the facts set up in the replication was constructive merely; it did not have actual knowledge that Williams was the foreman of a switching crew, but the agent’s knowledge on this subject is imputed to it. Now,'if the facts Avere not as laid in the replication, but were different therefrom in respect of the answer made by Williams to the question, in that, as there is a tendency of the evidence to show, Williams in terms falsely represented to McCluskey that he was foreman of a railroad yard, and there Avas such a position and it was less hazardous than that of switch foreman, in our opinion, plaintiff should not be allowed to recover, although McCluskey knew or had been informed that Williams Avas foreman of a switching crew. In the case just put the application containing the false statement furnished all the actual information the company itself had as to Williams’ occupation, and by it the insurer was misled to issue the policy. McCluskey in forwarding it Avas either acting in. collusion with Williams to defraud the company — and [146]*146all authorities concur that that is ground for avoiding the policy — or, at the very least he was induced in some way by- Williams to get that false statement beforé the company- — either for that the fact of its being made caused him to doubt his knowledge or the correctness of his previous information on the subject, or otherwise — ■ and in any event it would not have come to the company, they would not have acted upon it, they would not have been misled by it had Williams not made the false statement. On these' tendencies of the evidence, therefore, Williams- was clearly at fault in making the statement that he was foreman of a railroad yard; and sound-principle as well as the best considered adjudications constrain us to hold that, if these be the facts, the mis-statement avoids the policy notwithstanding the agent'knew the falsity of the answer when he wrote it down and sent the application to the company. This is the vitiating fault on the part of the applicant which is referred to in • our own cases cited above and which is so declared by the weight of authority in other jurisdictions. — 1 May on Insurance, § 133 B.
If the facts were as they were alleged in the replication — -if Williams was not at fault in representing his occupation to the agent — if the agent knew his occupation, and hence the company- — the issuance of the certificate to him was a waiver of the stipulation against his engaging in a hazardous occupation. On the case supposed he was insured by the company while engaged to its knowledge in the only hazardous occupation in which he was engaged at all, and he was insured with respect to that occupation. He never changed his pursuits, but continued in them to the instant of his death. The defense that he violated the agreement not to engage in a hazardous occupation is therefore merely cumulative upon the defense that he misrepresented his occupation. If the latter fails the former must fail also; and if the latter is made good, the former recovery is defeated without the aid of the latter.
Another defense much insisted upon is that the policy or certificate of insurance was never delivered to the insured, and hence that the contract sued on was' hot entered into by the defendant. There is a plea of non est [147]*147factum setting up this defense, and issue was taken upon, it. The evidence received on this issue.was free from conflict to the effect that the. policy was written out a.t the home office of the company in Chicago., Illinois, signed by its president and secretary and mailed, duly stanlped, on December 23, 1896, addressed to C. V. .Williams, the person applying for the insurance,-,.at Bessemer, Alabama, the place of. his residence. Williams came, to his; death the following day, December 24, 1896. There can,-of course, be no sort of doubt that on this state of- case the mailing of -the policy at Chicago -was then and there in legal contemplation- and effect a deliv-, ery of it to. Williams on that day, December 23, 1896.— 1 May-on Ins.j § §46-49; 1 Bacon, Benefit Societies, § § 272-3; Hartford Fire Ins. Co. v. King, 106 Ala. 519.
In this- connection there was a special plea intended to set up that it was agreed by.the terms of the application. that the contract of insurance “should not take effect until the first assessment and admission fee was paid and said certificate of membership [the policy], delivered to said Charles Y. Williams ,‘during his life and continuance in good health/ and defendant avers, that said first assessment and admission fee was not paid, and'said .policy was not delivered to said Charles Y. Williams ‘during his life-.and continuance in good health.’.”. The plaintiff-replied to this plea that the .certificate, was signed by the officers of the . company whose names appear on the copy thereof set out in 'the complaint, on the 23rd day of December, 1896, and that about two p. m. on that day “the said policy so' signed, with 'the seal of the company attached thereto, was placed in an envelope addressed to said Charles Y. Williams at Bessemer, Alabama,* and deposited at about two p. m. on said day in the postoffice at Chicago, Illinois; and that at that time the said Charles Y. Williams was in life and -in good health, and did not die until the 24th day of December, 1896; and the plaintiff further avers that on, to-wit, the 18th day of November, 1896, J. A. McCluskey, who was, the agent of defendant for soliciting insurance, and who applied to-the said Williams to take out a certificate of membership in the defendant company, at the time of doing so informed the said; Williams that the sum of two [148]*148dollars and forty-six cents was tbe-amount of tbe first assessment and admission fee, wbicb by the rules and regulations of tbe defendant was required to be paid by him on bis certificate of- membership in tbe Triple Link Mutual Indemnity Association for insurance limited to one thousand dollars; and that then and there, tbe said Williams paid to tbe said McCluskey as such agent the said sum of two dollars and forty-six cents as-such first assessment and admission fee, and the said McCluskey gave him a receipt therefor; and that the said McCluskey did not advise or inform said Williams then or at any other time that any other or- greater sum than $2.46 was the first assessment and admission fee which was necessary to be paid in order to secure said insurance, nor did he demand of said Williams any other or different or greater sum than $2.46 for that purpose.” The policy recites that Williams -resided at that time at Bessemer, Alabama, and the policy was set out in the complaint. It was not necessary for this replication to reiterate his residence at that place, even conceding that there need have been any averment on that subject, which is by no mans clear, since it may well be that the mailing of the policy to the place where the. officers of the company supposed him to reside, as is evidenced by the recital, would as effectually evidence their intention to deliver it, though they may be mistaken in point of fact, as mailing it to his true address.
Nor is it a _good. objection to the replication that it fails to aver that the officers of the company put the policy in the mails at Chicago. The averment is that the policy was properly signed and sealed by the company, and about a stated hour was placed in the post- ' office at Chicago. The necessary implication is that it was mailed by the company. It would be an unreasonable and absurd constrution of the averment to hold it to mean that this was done by a stranger without the assent of the defendant, and courts do not adopt absurd constructions even against a pleader.
The defendant rejoined to this replication “that at the time assured paid the $2.46 set out in said replication, the said assured knew that the first assessment and admission fee was a sum greater than the amount paid by [149]*149him, namely $2.46.” Read strictly, this is an averment that the greater sum was $.46. Bnt aside from that, the rejoinder Avas had. McCluskey representing and standing in the place of the company had a right to bind it by accepting less than the initial fee, and if he did so and the policy AAras issued, it is of no consequence that Williams knew that the regular and customary fee charged by the company was more than the company charged him.
The court in its general charge instructed the jury as follows: “It is for you to say, gentlemen of the jury, what ansAver was given to the agent. If you should say, from the evidence in this case, at the time Avhen the application for the policy was made by Williams, the assured,that he, through inadvertence, or through intention, or for any other reason misled or imposed upon the company in the matter of his statement of his occupation, then he would not be entitled to recover. But if he made a statement of what his business was,although he did not go into detail of what it was, and the agent of the insurance company knew what his business was from any dealings or transactions Avith him while he was seeking to effect the policy of insurance betAveen them, then that knoAvledge would be the knowledge of the company, and the company would be misled, not by any act of the assured, but by the act of the agent if there was an answer to a question that was not true, and such mistake could not opperate to the injury of the applicant, and the insurance company would be bound just-as if the applicant has stated the facts truthfully.” The defendant excepted to the last sentence in the foregoing instruction On the principles we have above declared the exception is well taken. Where the insurance company is misled by a false warranty of the applicant as to his occupation the knowledge of the agent of its falsity does not, as Ave have seen, emasculate the warranty of its vitiating quality. Whatever his knowledge it is to be presumed the agent Avould not have sent the false statement to his principal but for its having been made by the applicant: indeed, the greater and more accurate the agent’s knowledge, the more certain it is that a statement contrary to the truth is due to the fault of the [150]*150applicant.' The court erred in the part of the charge under consideration, and the ruling is not aided by other parts of the general charge.
Upon the same considerations charges 5 and 17 refused to the defendant are only faulty, if at all so, in assuming that there was' such a position in, railroad service as foreman of a railroad yard. ' The remaining portions of the court’s general charge and its other rulings upon charges requested by plaintiff and given, and requested by defendant and refused are in consonance with the views we have, expressed in'the course of this opinion.
We shall not discuss the rulings of the trial court on the admissibility of testimony. They have been examined and considered and found to be free from error prejudicial to appellant. • •
Reversed and remanded. ’ ' ■