U.S. Health & Accident Ins. Co. v. Hill

• Citation: 9 Ala.App. 222,62 So. 954
• Parties: UNITED STATES HEALTH & ACCIDENT INS. CO. v. HILL.
• Decision Date: 17 June 1913
• Court: Alabama Court of Appeals

62 So. 954

9 Ala.App. 222

UNITED STATES HEALTH & ACCIDENT INS. CO. v. HILL.

Court of Appeals of Alabama

June 17, 1913

Rehearing Denied June 27, 1913

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by William Hill against the United States Health & Accident Insurance Company. From a judgment for plaintiff, the defendant appeals. Reversed and remanded.

The complaint declares upon an action of insurance policy issued by said defendant to plaintiff December 21, 1909, in which said policy defendant insured plaintiff against accidents to the person for the terms of one year, and agreed to pay plaintiff the sum of $10 per week so long as he should be disabled from following his usual occupation by reason of said accident, and plaintiff avers that on or about the 14th day of January, 1910, he suffered an injury by reason of an accident which disabled him from following his usual occupation for the space of 10 weeks, of which said defendant has had notice, and has failed and refused to pay the same. The third plea set up an application in which plaintiff stated that he had no other accident or health insurance in this or any other company, association, or society, and that he warranted the statement to be true, but that said statement was untrue, and that the policy was issued upon the faith of said certificate. The fourth plea set up the same application and representations, and that the representation was false and was known to plaintiff to be false at the time and that the policy was issued on the faith of such representation. The fifth is practically the same as the third and fourth combined. The sixth plea sets out the question and answer, and alleges the same to be material and false, and that the policy was issued on the faith of such statement. The seventh is the same as the third. Defendant afterwards filed pleas A, B, and C, which set up in full the application, and make the allegations alleged in the former pleas, setting out what other companies he was insured in together with the conditions governing the same.

It appeared from the evidence that plaintiff had insurance in several other accident companies, and had been paid by several of them for the accident here sued. C.W. Austin testified that he had had much experience in comparing handwriting obtained from long experience of years of service as a detective and as chief of police of the city of Birmingham. The policy was introduced and contained the usual provisions and conditions as to indemnity; the first being effects resulting directly and exclusive of all other causes from bodily injuries sustained during the life of this policy solely through external, violent, and accidental means monthly indemnity $50.

Palmer P. Daugette, of Birmingham, for appellant.

George E. Bush, or Birmingham, for appellee.

PELHAM, J.

Suit was originally instituted by the appellee in the inferior court of Birmingham, and was brought by certiorari, at the instance of appellee, to the circuit court. The judgment entry in the record shows that both parties appeared generally in the circuit court on the 31st day of December 1912, and that the case was continued (by consent of both parties) to a later day in the term. When the case was subsequently called for trial, the defendant objected to going to trial because notice of the certiorari had not been served upon it. The objection came too late, after the general appearance and consent to a continuance. Goss v. Davis, 21 Ala. 479; Gould v. Meyer, 36 Ala. 565. No ruling on the defendant's motion to quash the certiorari is shown by the judgment entry, and the bill of exceptions shows that the motion was made, not only after appearance entered and pleas filed by the defendant, but after all of the evidence in the trial on the merits had been introduced by the plaintiff and defendant and the case submitted to the court for a decision. It appears from the record that the case was tried on January 2, 1913, and was taken under advisement by the court and judgment rendered for plaintiff on March 8, 1913, and that the motion to quash was argued and submitted to the court on March 15, 1913, and was overruled on that date. The motion was not seasonably made, and error cannot be predicated on the court's action in overruling it.

The court's action in sustaining the plaintiff's ...