Accident Ins. Department, Etc. v. Brooks , 216 Ala. 605 ( 1926 )

On Petition for Rehearing. When the whole proceedings are considered together — pleadings and evidence — the trial of the issues of fact were on the theory that the contract of the parties was evidenced by the application and certificate of insurance into which entered the laws of the order that were applicable, and that the issue was whether plaintiff gave the required notice of his injury within a reasonable time after he had discovered that injury. To the pleas of the defendant were directed several replications, 1 to 4, inclusive, and to which demurrer was overruled as to some and sustained as to No. 4. Thus were presented the issues of fact discussed on the original hearing.

In the trial of the cause, plaintiff offered testimony tending to prove his complaint; the defendant's testimony tended to prove that the notice indicated in its plea had not been given by the plaintiff within a reasonable time; and plaintiff offered testimony tending to show that the notice was given within a reasonable time and also to prove the special replication. The issue presented to the jury and tried by it was a disputed question of fact, being that of whether or not the said notice was given within a reasonable time. On this question, the jury found for the plaintiff. It was, therefore, not necessary that the plaintiff should prove all the replications he saw fit to introduce.

It is well established that, where the fact of agency rests in parol or by way of inference from the conduct of the principal, and there is evidence to show the agency, the acts and declarations of the agent are admissible, and the fact of agency vel non is usually a question for the jury. The letter of E. P. Curtis was a declaration of the purported agent (its general secretary and treasurer) and it supported the issue of waiver of other notice, or such was the reasonable inference that the jury may draw therefrom. Roberts Sons v. Williams,198 Ala. 290, 73 So. 502; Robinson Co. v. Greene, 148 Ala. 434,43 So. 797. The letter from Curtis as general secretary was competent evidence, since there was other evidence from which the authority in the premises might be inferred. Gambill v. Fuqua, 148 Ala. 448, 42 So. 735; Eagle Iron Co. v. Baugh,147 Ala. 613, 41 So. 663. The writer of this letter (and other letters in evidence) was holding himself out as the agent of the defendant in handling the claim, acting as said agent generally in the matters of the sufficiency of notices and of all claims. Defendant had the direct control of this agent or agency, and had the possession of all of his correspondence as such alter ego, and knew that Mr. Curtis was so acting in that behalf, and in passing upon the fact of whether or not a claim was regular or questionable. It was within the line of his duty to inform the claimant, if the claim as made was objectionable, and to state to a member the reasons why.

Curtis was the general secretary of the defendant; had more than limited authority; was the alter ego of defendant for the purposes indicated in the by-laws and constitution of the defendant. In article 5 it is provided:

"The general secretary shall keep a true record of all the business of the department, a register of the members, receive and hold in trust all funds of the department, and shall pay to the proper person or persons, upon receipt of unquestionable proof of injury or death caused by accident, such amount as such person or persons are entitled to receive in full as indemnity for loss of time, dismemberment, or death. He will pay no questionable claim for indemnity for loss of time, or dismemberment or death unless approved by trustees. He shall be held under his bond in the Order of Railway Conductors for the faithful performance of his duties as general secretary of this department."

And in article 12 it is further provided:

That said official shall pay disability claimants, if the proof thereof is unquestionable, and, "if the proof of claim for disability is questionable, the general secretary will refer it to the trustees of the department for action thereon, and, if a majority of the trustees approve the claim, the general secretary shall, upon the receipt of such approved claim, forward check covering same to claimant in full payment of all liability against this department on account of such disability."

Thus he was more than a limited agent, and was clothed with judgment and authority to act in the matter of requiring immediate payment of a claim, or to refer it to the trustees of the department for further consideration.

As we have stated, the issues of fact presented were whether or not plaintiff was injured and gave due and seasonable notice of his injuries. Defendant's pleading presented said issues, and plaintiff's replies were that of waiver. The evidence or inferences therefrom was submitted in support of the respective insistances. The jury found for plaintiff under the issues as made up. The failure of plaintiff to prove one of several replications to a plea does not warrant a judgment on the pleas for the defendant, if other replication thereto be proven and is an answer to the plea (Fidelity Deposit Co. v. Mobile County, 124 Ala. 144, 151, 27 So. 386; Glass v. Meyer, Son Co., 124 Ala. 332, 335, 26 So. 890), and such is the case as to the verdict rendered.

The application for rehearing is overruled.