Williamson v. New Orleans Insurance

84 Ala. 106

• Court: Supreme Court of Alabama
• Decided: December 15, 1887
• Status: Published

Opinion

CLOPTON, J.

The evidence that the farmers in the neighborhood in which the insured property was situated usually gather, gin and market their cotton before the time of year at which the fire occurred, was improperly admitted. There was no issue joined between the parties to which the evidence was relevant. The plaintiff was not under obligations to gin and market his cotton before any specified time. It was his privilege to let it remain in the gin-house, until such time as suited his convenience to remove it. He was authorized to keep it in the gin-house during the entire time the policy was in force, and rely upon the insurance for his protection.

The answers to the questions contained in the application for insurance are made a part of the contract and. express, warranties of their truth. Notwithstanding this, if the agent of the insured made true statements of the condition of the title and ownership of the property to the agent the defendant at the time the application for insurance and the answers were made, and the agent of the defendant nevertheless wrote the answer as appears in the application, thus substituting an answer which was untrue, the answer is the statement of the agent and not of the assured. In such case, the defendant will not be permitted to take advantage of the wrongful act, or misconstruction, or mistake of its own agent, and avoid the policy, the insured being without/ fault. — Ala. Gold Life Ins. Co. v. Garner, 77 Ala. 210.

The charge of the court withdrew from the consideration of the jury the evidence, tending to show that the assured made a full and truthful statement of the condition of the title to the property, at the time of making the answers, and that the answers, as written therein, were made by the agent of the defendant, at his own suggestion and upon his own volition.

The burden is upon the plaintiff to show that he made a full and true statement of the condition of the title. The defense of a breach of the warranty is not technical, and should receive the same consideration as any other meritorious defense.

Reversed and remanded.