Opinion
5 Div. 638.
June 1, 1965.
Appeal from the Circuit Court, Chilton County, J.J. Mullins, J.
Lawrence F. Gerald, Jr., Clanton, for appellant.
An automobile owned by an employer and furnished to the employee in connection with his duties for his employer is not an owned automobile within the terms of a family automobile insurance policy covering expense for medical services but is one within the exclusions of said policy. Moore v. State Farm Mutual Automobile Ins. Co., 239 Miss. 130, 121 So.2d 125; Johns v. State Farm Mutual Automobile Ins. Co., 41 Ala. App. 615, 146 So.2d 323; 7 Am.Jur.2d, Automobile Ins., § 106; 86 A.L.R. 956. Parole evidence is not admissible where the effect would be to change or defeat or vary the terms of a written instrument. Smith v. Wilder, 270 Ala. 637, 120 So.2d 871; Tutton v. Liverpool and London and Globe Insurance Company, Ltd., 237 Ala. 230, 186 So. 551; Simpson Sales Co. v. British Gen. Ins. Co., 252 Ala. 337, 40 So.2d 409. No life nor any other insurance company nor any agent thereof shall make any contract of insurance or agreement as to policy contract other than is plainly expressed in the policy issued thereon. Code 1940, Tit. 28, § 75.
Morgan Reynolds and Reynolds Reynolds, Clanton, for appellee.
Insurer's local agent who is furnished with blank policies to be filled out and signed by the agent and issued to the insured has all powers of a general agent when issuing such policies and may bind the company in the premises. Canal Ins. Co. v. Bush and King, 247 Miss. 87, 154 So.2d 111; Guarantee Mutual Fire Ins. Co. v. Jacobs, Fla., 57 So.2d 845; Sun Ins. Office v. Mitchell, 186 Ala. 420, 65 So. 143; Tutter v. Liverpool and London and Globe Insurance Company, Ltd., 237 Ala. 230, 186 So. 551.
The appellant insurance company appeals from a judgment for $942.90 rendered against it in favor of Mr. Head, the plaintiff below.
The action was on the medical benefit provisions of an automobile liability policy. The question is whether or not the contract covered Mr. Head, a State Highway Patrolman, for injuries sustained while occupying a State car.
The named automobile in the written policy was not a State car. The policy excluded the risk of medical expense to the named insured "while occupying an automobile * * * other than an automobile defined herein as an 'owned automobile.' " This exclusion was pleaded in the defendant's answer.
The court admitted evidence that Mr. Head asked the insurance company's agent if the coverage in question extended to him while in a State car. This was over the defendant's objection and the overruling is assigned as error.
The plaintiff, having plead under the policy, was accordingly confinable thereto in his proof. Our insurance statute, Code 1940, T. 28, § 75, makes the written policy the sole expression of the agreement. Also, in general, parole testimony will not be received to vary a written contract.
One can have a suit for breach of an oral agreement to insure. However, the cause of action is not the breach of a promised policy, but rather for the failure to carry out the oral agreement. Home Ins. Co. v. Adler, 71 Ala. 516.
The judgment below is reversed and the cause remanded for new trial.
Reversed and remanded.