Benefit Ass'n of Ry. Employees v. Armbruster

• Decision Date: 22 March 1928
• Docket Number: 6 Div. 979
• Citation: 217 Ala. 282,116 So. 164
• Court: Alabama Supreme Court
• Parties: BENEFIT ASS'N of RY. EMPLOYEES v. ARMBRUSTER.

116 So. 164

217 Ala. 282

BENEFIT ASS'N of RY. EMPLOYEES v. ARMBRUSTER.

6 Div. 979

Supreme Court of Alabama

March 22, 1928

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action by Hattie Armbruster against the Benefit Association of Railway Employees. Judgment for plaintiff and defendant appeals. Reversed and remanded.

London Yancey & Brower and Jim C. Smith, all of Birmingham, for appellant.

Black &amp Fort and G. Ernest Jones, all of Birmingham, for appellee.

ANDERSON C.J.

This is a suit upon an accident policy of insurance, and the code form of complaint on life insurance policies (form 12) does not apply. Gilliland v. Order of R.R. Conductors, 216 Ala. 13, 112 So. 225. This case was tried upon count A alone, and, while said count avers that the death and accident occurred "during the life of the policy," this is a mere conclusion as no facts are set forth showing such a compliance with the terms of the contract on the part of the insured as to render it in force at the time of the accident, resulting in death, and the trial court erred in not sustaining the defendant's demurrer to said count. National Life Accident Ins. Co. v. Hannon, 212 Ala 184, 101 So. 892. Moreover, the complaint shows that the accident occurred before the policy was issued, and, while this may have been a clerical misprision, the complaint must be more strictly construed against the pleader and inferences will not be indulged to uphold same against an appropriate ground of demurrer.

As the only count upon which this case was tried was subject to defendant's demurrer, we could here conclude this opinion, but, assuming that the complaint will be properly amended so as to show a valid and subsisting contract at the time of the injury, we shall treat such of the assignments of error as may be helpful upon another trial, especially whether or not the policy covered the alleged accident, for, if it did not, an amendment and proof of the existence of the contract would amount to nothing.

The policy contains the usual clause:

"For loss resulting directly and exclusively of all other causes, from bodily injury sustained at any time during the life of this policy solely through external, violent, and accidental means (excluding suicide, sane or insane)."

Again:

"If the death of the insured shall result solely from 'such injury' and within 120 days from the date of the accident," etc.

Some of the courts, including our own, have construed this clause to mean that the accident shall be the proximate cause of death and not exclusive of other conditions, means, or circumstances. Standard Accident Ins. Co. v. Hoehn, 215 Ala. 109, 110 So. 7. In said case we cited and followed the Arkansas court in the case of Fidelity Co. v Meyer, 106 Ark. 91, 152 S.W. 995, 44 L.R.A. (N.S.) 493. This case holds, where accidental injury aggravated a disease and hastened death so as to cause it to occur at an earlier period than it would have occurred but for the accident, it is the direct, independent, and exclusive cause of death at the time. In the case at bar, while the undisputed evidence shows that the insured had appendicitis, there was evidence from which the jury could infer that while being taken to the hospital in a vehicle he was jolted off of the cot or seat, whereby his appendix was ruptured or bursted, and that if h...