Allen v. Standard Ins. Co., 6 Div. 341

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 73 So. 897,198 Ala. 522
• Decision Date: 16 November 1916
• Docket Number: 6 Div. 341
• Parties: ALLEN et al. v. STANDARD INS. CO.

73 So. 897

198 Ala. 522

ALLEN et al.
v.
STANDARD INS. CO.

6 Div. 341

Supreme Court of Alabama

November 16, 1916

Rehearing Denied Jan. 18, 1917

Appeal from Circuit Court, Jefferson County; J.J. Curtis, Judge.

Action by Henry Allen and others, administrators, against the Standard Insurance Company. From an order granting new trial, plaintiffs appeal. Affirmed.

Bondurant & Smith and L.J. Haley, Jr., all of Birmingham, for appellants.

Percy, Benners & Burr, of Birmingham, for appellee.

THOMAS, J.

In the suit which was on an insurance policy, at plaintiff's request the [73 So. 898.] general affirmative charge was given. From the order granting a new trial, the appeal is taken.

The defendant pleaded "in short by consent, with leave to prove any fact that would be a good defense, and with leave to plaintiffs to prove anything in reply that would avail same in law." The real defense was that fraudulent statements were made by the insured in the application for the policy, that such misrepresentations were made with actual intent to deceive, and that the matter misrepresented increased the risk of loss. Code 1907, § 4572.

The statute declares that no life insurance company shall contest a claim under a policy of insurance, on the plea of fraud or irregularity in the application, after two annual premium payments have been made on the policy, etc., and that "no plea of misrepresentation or fraud in the application shall be filed unless accompanied by a payment into court, for the plaintiff, of all premiums paid on the policy." Code, § 4573.

Compliance with this statute is a condition precedent, after the making of two annual payments, or payment of all premiums due, where death ensues before the expiration of two years from date of the policy, to the right of the defendant to attack the policy on the ground presented by the plea in the instant cause. Code, § 4572; Meridian Life Ins. Co. v. Dean, 182 Ala. 127, 62 So. 90; Meridian L.I. Co. v. Dean, 184 Ala. 673, 62 So. 94; Massachusetts Mut. L.I. Co. v. Crenshaw, 186 Ala. 460, 65 So. 65; Eminent Household, etc., v. Gallant, 69 So. 884. These insurance statutes are given liberal construction in favor of the insured. Knights of Maccabees v. Gillespie (App.) 71 So. 67; Metropolitan L.I. Co. v. Goodman, 71 So. 409; Massachusetts M.L.I. Co. v. Crenshaw, 70 So. 768; Afro-Am. L.I. Co. v. Adams, 70 So. 119.

The evidence showed the issuance and delivery to the insured of the policy sued on and the payment by him of all premiums due thereon to the time of his death. The policy was in evidence. It was admitted that notice to defendant or proof of death was received, and that the policy had not been paid. Under the evidence the plaintiffs discharged the burden of proof as to the right of recovery. The defendant must bring his defenses under the statute by his pleading and proof. Failing in this, the general charge may be given for plaintiff.

Did then the pleading in short by consent aid this defendant in discharging its burden of proof under the plea of fraud or misrepresentation, as provided by statute? The courts of this state have held that pleading in short by consent, whether the pleading be named or otherwise designated, means that all material averments are considered as having been made. It has reference only to the form of the plea. The defense must be good in substance. Gayle v. Randle, 4 Port. 232; Abercrombie v. Mosely, 9 Port. 145; Pollard v. Stanton, 5 Ala. 451; Lacy et al. v. Rockett, 11 Ala. 1002; Governor v. Bancroft, 16 Ala. 605; Reid v. Nash, 23 Ala. 733; Harrison v. Harrison, 39 Ala. 489; Cotton v. Ward, 45 Ala. 359; Carmelich v. Mims, 88 Ala. 335, 6 So. 913; Steele v. Walker, 115 Ala. 485, 21 So. 942, 67 Am.St.Rep. 62.

In Converse Bridge Co. v. Collins, 119 Ala. 534, 24 So. 561, the case of Ala. & F.R.R. Co. v. Watson, 42 Ala. 74, was overruled, and it has since been the rule that pleas in short by consent are an authorization to a defendant to avail himself of any special defense to the same extent as if specially pleaded. Austin & Sons v. Hunter, 193 Ala. 163, 69 So. 113; Garnett v. Parry Mfg. Co., 185 Ala. 326, 64 So. 559; McCaskey Reg. Co. v. Nix Drug Co., 7 Ala.App. 309, 61 So. 484; L. & N.R.R. Co. v. Williams, 5 Ala.App. 615, 56 So. 865, 59 So. 673.

Defendant's failure to support its plea of misrepresentation or fraud, by the payment into court, for the plaintiffs, of all...