104 So. 643 (Ala. 1925), 2 Div. 852, New York Life Ins. Co. v. Turner

• Docket Nº: 2 Div. 852
• Citation: 104 So. 643, 213 Ala. 286
• Opinion Judge: BOULDIN, J.
• Party Name: NEW YORK LIFE INS. CO. v. TURNER.
• Attorney: R.P. Roach and V.R. Jansen, both of Mobile, for appellant. Gray & Dansby, of Butler, and James J. Mayfield, of Montgomery, for appellee.
• Judge Panel: ANDERSON, C.J., and SOMERVILLE and THOMAS, JJ., concur.
• Case Date: May 28, 1925
• Court: Supreme Court of Alabama

Page 643

104 So. 643 (Ala. 1925)

213 Ala. 286

NEW YORK LIFE INS. CO.

v.

TURNER.

2 Div. 852

Supreme Court of Alabama

May 28, 1925

Appeal from Circuit Court, Choctaw County; Ben D. Turner, Judge.

Action on a policy of life insurance by Beulah G. Turner against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

R.P. Roach and V.R. Jansen, both of Mobile, for appellant.

Gray & Dansby, of Butler, and James J. Mayfield, of Montgomery, for appellee.

BOULDIN, J.

The suit is upon a policy of life insurance. For decision on former appeal, see New York Life Ins. Co. v. Turner, 210 Ala. 197, 97 So. 687.

The case went to the jury on pleas of the general issue, a special plea setting up a breach of the suicide clause, and plea of tender of return premiums due under the terms of that clause.

There was no error in admitting, as evidence of notice of death, the claimant's statement in form provided by the insurer. It was not objectionable on the ground that it appeared on the face of the paper to be only a part of proofs of death, along with other statements called for therein. Under the issues, the burden was on plaintiff merely to show notice of death. If a defense is predicated upon failure or refusal to furnish proof in form or substance as stipulated in the policy,

Page 644

it must be by special plea. Manhattan Life Ins. Co. v. Verneuille, 156 Ala. 592, 598, 47 So. 72.

The other proofs referred to were later offered, and defendant had the benefit of the disclosures therein touching the cause of death, and error, if any, in admitting same by piecemeal, was harmless.

Again, it is without dispute that the insurer took notice of the claim, proceeded to pass upon it without objection to the sufficiency of proof, and offered to pay the amount admitted to be due in case of death by suicide. This was a waiver of any question of form of proof. Fire Insurance Cos. v. Felrath, 77 Ala. 194, 54 Am.Rep. 58; Commercial Fire Ins. Co. v. Allen, 80 Ala. 571, 1 So. 202; Capital City Ins. Co. v. Caldwell Bros., 95 Ala. 77, 10 So. 355.

In all events, the plaintiff was entitled to recover under the terms of the policy the amount of premiums paid by the insured. If, under the undisputed evidence, this was the limit of the amount recoverable, an affirmative charge directing a general verdict...