The Montgomery advertiser., 1905-09-23


 CONTINENTAL INSURANCE CoMPA-
 NY V. PARKES.
 Action upon fire insurance poiicy.--Ap-
 peal from City Court of Birming-
 l, Pleading and practice; what plea insufficieut.--A plea filed to complaint upon q ire insurance policy which merely alleges that the plaintiff ought not to recover in the action upon the contract sued by reason of anything all teKhA in the complaint is demurrable because it neither denies nor confesses and avoids the allegation of the com plaint
 2. Same: same; Pleas alleging conclu- sions of law and not statement of facts. ---In an action upon fire insurance pol icy a plea alleging that in and by the terms of the policy It is provided that the contract may be cancelled, and that in accordance with the terms of the policy in regard to cahcellation the said policy was cancelled by the de- xendant before the loss occurred merely alleges the conclusions of the pleader and Is demurrabie for failing to set out the terms of the policy sued on so that the court could determine the right Of defendant to cancel and thereby termi- nate It's liability thereon.
 3. Same; same.--A plea alleging that defendant did not issue any policy to plaintiff. but that it did issue one to pIaintiff's husband which subsequent ly was cancelled and surrendered is q plea of non est factum and must be sworn to.
 {. Same; same; when plea insufi- cientiy alleges notice to assured of in- tention to cancel policy.-In an action upon a fire insurance policy one of de- fendaut's pleas alleged that the policy was originally issued to the husband of E-. 4.Hn t~.A n-~. KlA payable to R. M. as mortgagee as his interest might appear. That after wards said R. M- returned said policy to defendants agent and had same changed so that plaintiff became the as- surad and ]. M.. the wife of the said K. M.s was named as mortgagee and loss, if any. made ayable to her as such snortgagee as her interest might appear and mat the said J. M. then took pos session of said policy and that it was not thereafter in the possession of the piainfiG. That by the terms of said policy defendant on notice for the space of i've days had the right to cancel said policy and that subsequently, said de- kendant did give notice to the said J. M that 1t would cancel said policy and the said !. M thereupon surrendered said policy to the defendant and the same was cancelled by defendant before the leEs occurred. Held. that said plea ts fatally defective in falling to show notice to the assured of defendants in- tention to cancel the policy. Held further that notice to the mortgagee would not be sufficient notice to enti- tie defendant to cancel, but such notice must have been to assured.
 5. Same; same; right of Insurance T- pany to cancel policy strictly con- d against company. A provision
 insurance policy reserving to the
 rer 6 right to cancel same is
 tly construed and the conditions
 sed upon it with respect to giv-
 notice of cancellation must be -----tly performed.
 6. Same; same; what sufficient notice of loss to an insurance company Where a policy of insurance provides that if fire occur the insured shall give immediate notice of any loss thereby in writing to the company, an allegation that the insurance com pany had actual notice of the loss within forty.eiSht hours after the fire is not a sufficient allegation of notice by the Insured.
 '. What considered not a waiver of provision in policy requiring notice of loss Where policy of insurance provides that if fire occurs the in Bured shall give immediate notice of eny loss thereby in writing to the Company, a statement by the local agent Of the company to the assured that the policy had been cancelled be- fore the loss and that the company aenied liability hereunder does not constitute a waiver by defendant of the notice required by the policy un- tess the agent had authority to bind the Company by his statement
 g. Statutory provision that insurance company belonging to a tariff associa- tion pay penalty not unconstitutional. --Section 26iS Of the Code of Alabama providing that in case of loss an in surance policy issued by an insurer who belonged to or was a member of or in any wise connected with any tArin association or such like thing by whatever name called, etc, shall be construed to mean that the assured or beneficiary hereunder may in ad- dttion to the actual loss or damage suffered recover 25 per cent. of the amount of such actual loss, any pro vision or stipulation to the contrary in the policy notwithstanding Is q le- gftimate exercise of the police power of the State >.-. . + ..s.-:
 3. Same.-Such statutory provision is not violative of the constitutional provision for singling out particular persons or corporations and discrim- mating against them.
 10. Same; said provision applies to foreign insurance companies as well as domestic.-The fact that the insur- CT happens to be foreign corporation does not render the provision uncon- stitutional or void as to it.
 Il. Same; same; Insurance compa- nies are not engaged in interstate commerce.-Insurance companies or gani1ed in other states and isuing policies in this State are not engaged in interstate commerce., nor are the contracts Of insurance entered into by such companies Tn this State inter state transactions.
 12. Authority of agent to waive written notice provided for in policy when such authority question of fact for the jury.-Where the local agent of an insurance company perform acts at various times not expressly confer red by the instrument appointing it as agent and such acts were recogniz- ed by the principal as within the au- thority of the agent and were not re- fact for the jury to determine whether or not the agent had au- thority to waive for the defendant company a provision in the policy re- quirlng written notice of loss to be given immediately after a fire occur red.
 13. Same; what sufficient waiver of notice.-Tf the local agent had au- thoFity to bind its principal a distinct denial of defendants liability because the policy had been cancelled would be a waiver of the notice and proof of loss as required Of the assured by the policy.
 and rapnondad