Life & Cas. Ins. Co. of Tenn. v. Garrett

• Decision Date: 19 February 1948
• Docket Number: 6 Div. 558.
• Court: Alabama Supreme Court
• Parties: LIFE & CASUALTY INS. CO. OF TENNESSEE v. GARRETT.

35 So.2d 109

250 Ala. 521

LIFE & CASUALTY INS. CO. OF TENNESSEE v. GARRETT.

6 Div. 558.

Supreme Court of Alabama

February 19, 1948

Rehearing Denied May 13, 1948.

Bainbridge & Mims and Chas. W. Greer, both of Birmingham, for appellant.

G. R. Harsh and John L. Glasser, both of Birmingham, for appellee.

LAWSON Justice.

Mrs Clyde Garrett, plaintiff in the court below (appellee here) brought this action against the Life and Casualty Insurance Company of Tennessee to recover under a policy of insurance (Industrial Travel and Pedestrian Policy), in which she was named as beneficiary wherein her son, Wesley D. Garrett, was insured against the result of bodily injuries, including death effected solely by external, violent and accidental means strictly in the manner and subject to the provisions and limitations stated in the policy.

In so far as the pleadings are concerned, the case was submitted to the jury upon Count Three of the complaint and defendant's plea of the general issue.

There were verdict and judgment for plaintiff. Motion for new trial having been overruled, defendant has appealed to this court.

In the insurance contract sued upon, in the general liability clause, the defendant obligated itself to pay the named beneficiary the sum of $1,000 provided the insured was killed in a manner specifically described in said clause. By a subsequent clause--separate and distinct--constituting an exception--it was provided that the policy did not cover injuries either 'fatal or non-fatal of which there is no visible contusion or wound on the exterior of the body of the insured causing the death or disability, or injuries received by the insured while engaged as a brakeman, switchman, conductor, fireman, or engineer of a railroad, or employed in the yards of the roundhouse of a railroad, or enrolled in the military or naval service in time of war. * * *' (Emphasis supplied.)

As before indicated the exception was not in the general liability clause of the policy. Consequently the plaintiff could rely upon the general liability clause in the statement of her cause of action, and set out that clause only. She was not required to notice the separate and distinct clause which operated as an exception to liability. Such exception constituted defensive matter and to be availing, the defendant must plead the defense afforded by the exception. Standard Life & Accident Insurance Co. v. Jones, 94 Ala. 434, 10 So. 530; Belt Automobile Indemnity Ass'n v. Ensley Transfer & Supply Co., 211 Ala. 84, 99 So. 787; New York Life Ins. Co. v. Beason, 229 Ala. 140, 155 So. 530. In the case last cited the case of Protective Life Ins. Co. v. Swink, 222 Ala. 496, 132 So. 728, is distinguished.

Although the averments of Count Three of the complaint make no reference to the place where the insured was killed or the nature of his employment at that time, the evidence for the plaintiff shows that the deceased met his death in France on April 11, 1945, when this country was engaged in war, and that at the time of his death the insured was enrolled in the military service.

The defendant insists that since the policy sued on contained the military service clause above set out and since the evidence for the plaintiff shows that the insured met his death on April 11, 1945, while enrolled in the military service, the trial court erred in not giving the general affirmative charge as requested by it. This contention is without merit. If the defendant insurance company desired to rely on the exception relating to 'military service,' it should have been specially pleaded. Life and Casualty Insurance Co. of Tennesee v. Bryan, Ala.App., 33 So.2d 25. Since such exception was not specially pleaded it was not an issue in the case. Life and Casualty Insurance Co. of Tennessee v. Street, 213 Ala. 588, 105 So. 672. If it had been specially pleaded we would have to consider the effect of such exception in the light of the decision in the case of Merchants Nat. Bank of Mobile v. Commonwealth Life Ins. Co., 249 Ala. 58, 29 So.2d 350.

The only evidence in this record which in any way casts any light on the circumstances connected with the death of insured is that shown by the deposition of Karl B. Martz, who was the Captain of the company of which insured was a member.

Martz was not present at the time insured met his death. But he saw his dead body lying 'crossways' of a road leading from 'Cognac, to Saintes, and to Royan,' in France. There were numerous lacerations on the head of insured and one side of his face was almost severed. Martz also answered swered in his deposition that he saw a jeep 'upside down in the road.' It does not appear how far the body of the insured was from the overturned jeep. The jeep had been issued by the United States Army Supply Branch to Headquarters Battery, 13th Field Artillery Brigade. It does not appear that the insured was connected with the last-mentioned unit. As to the condition of the road and the...