The Birmingham age-herald., 1903-01-15

Il
 | Cassimus Brothers vs. Scottish Union National Insurance Co.-Action on Fire Policy.-Appeal from Montgomery Circuit Court.
 l. Action on fire insurance policy; sui nciency of plea.-In an action upon a fire Insurance policy q plea which ayers that
 Tn the policy of insurance sued on 1t was
 expressly stipulated and agreed that the
 entire policy. unless otherwise provided
 by agreement endorsed thereon or added
 thereto. should be void if the hazard was
 increased by any means within the con
 trol or knowledge of the insured, and
 that the hazard was increased by means
 within the knowledge and control of the insured, in that the plaintiff kept within
 the building covered by said policy a large amount of easily ignitable and in- tiammable material to-wit: ten gallons or gasolene; and there was no agreement endorsed on or added to said policy com senting thereto. presents defense to the maintenance of said action, and Is not subject to demurrer.
 2 Same; same.-In such an action. plea which ayers that 1t was expressly stipulated, understood and agreed that said policy, unless otherwise provided bv agreement endorsed thereon or added thereto, should be void if there should he
 Kept, used or allowed on the premises covered by said policy. any gasolene and 'hat tliere was kept used and allowed on
 said premises, and there was presenr thereon at the time of the fire a large amount of gasolene, and that it was
 never provided by agreement endorsed on or added to said policy, that the same could be kept, used or aiioweG on said
 premises, nor was the same consented to.
 presents a defense to the maintenance of
 the action, and is not subject to de-
 murrer.
 3 inh nF
 pany to deny liability under policy.-The fact that fire insurance company. upon the receipt Of notice and proof of loss denied liability under a policy formerlv issued by 1t, and states at the time that its conditions had been violated in only
 one particular, does not prevent said
 company from afterwards setting up in
 defense of an action upon said policy.
 other and different breaches of the con
 ditions of the policy; 1t not being shown
 that the plaintiff was misled to his in-
 jury by the denial of liability on the par
 ticular ground stated.
 4 Action on insurance policy; suffi- ciency of replication.-In an action upon
 a fire insurance policy, to recover for the
 destruction of a stock or goods, where
 the defendant sets up by special plea as
 a defense, a claim of forfeiture of the
 policy, by reason of the plaintiff keekinc gasolene on the premises insured. contra ry to the Stipulations of the policy n re-
 plication of said plea which ayers that
 in the policy the stock of merchandise
 insured was described us ''conslsting
 principally of confectionaries liquors, ci- gars. tobacco, toys and such merchant disc usually kept In similar stocks" and that the agent who procured the plain | tiff application for insurance and is-
 sued the policy upon being asked if the | keeping of gasolene was covered by the ! expression usually kept in similar stocks" replied that it was, does nor present an answer to said plea; and the | facts averred in said replication consti- ute an estoppel against the defendant setting up the forfeiture or the policy: | the statement of the agent being merely his opinion as to the meaning of the
 clause in the policy, the meaning of
 which was equally open to the plaintiff
 and said agent and not being the repre- sentation of any fact whereby the plain tiff was msled
 D. Same same.--In such an action, a replication which, after averring the de-
 as set out above, then ayers that gaso-
 lene Is usually kept with the class of
 goods" as described in said policy is
 bad and presents no answer 10 the plea,
 said replication not averring that gaso-
 lene was kept as part of the stock of
 merchandise insured by the plaintiff.
 6. Fire insurance; waiver of forfeiture;
 authority of agent; notice.-The agent of
 a fire insurance company who is only
 authorized to solicit and take applica-
 tions for insurance. and deliver the policy
 and receive the premiums, has no au-
 thority to waive the conditions or stipula- tions of the policy, providing against the increase of the hazard and prohibiting the keeping of gasoline upon the premises