Allen v. Standard Ins. Co.

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

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 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 premiums paid on the policy, was not relieved by the form of pleading adopted in this case.The consent of the parties did not extend to a waiver of the conditions precedent declared by the statute.When consent for pleading in short is given, the plaintiff is authorized to assume that the defendant will make his pleadings and proof conform to the statutory requirements.Failure to do this may be availed of by plaintiff through a motion to exclude the testimony on that plea, or by requesting a written charge.Wertheimer Bag Co. v. Hill(App.)71 So. 618.

Appellee now insists that the general charge should not have been given because of a variance between allegata et probata.It is averred in the complaint that the policy sued on was for $2,000, that it was of date January 12, 1915, and that it insured for the term of one year the life of John J. Allen, deceased, who died on June 2, 1915.The policy introduced in evidence was a 20-year endowment, of date January 12, 1915, for the sum of $2,000, payable to John J. Allen on January 12, 1935--

"if the insured be then living, or upon receipt at said home office of due proof of the prior death of the insured, during the continuance of this contract, to the estate of the insured, the beneficiary."

The further pertinent provisions of the policy were as follows:

"The consideration for the above promise is the application therefor of the insured, a copy of which is attached hereto and made a part hereof, and the annual premium of $85.20, payable on delivery hereof, and on the 12th day of January, in each and every year, at the company's home office or to an authorized agent, in exchange for receipts signed by the president or secretary, until twenty full annual payments have been made or until the prior death of the insured.This policy will not take effect unless the first premiums or agreed installments thereof shall have been paid during the lifetime of the insured.The company will accept in lieu of the annual payment, semiannual payments of $44.30 each to be paid on or before the 12th day of January and July, or quarterly payments of $22.60 each, on or before the 12th day of January, April, July and October, in each year. ***

"Premiums.--All premiums hereunder are payable in advance."

In U.S.H. & A.I. Co. v. Savage,185 Ala. 232, 64 So. 340, it was held that there was a fatal variance where the complaint was on a policy insuring "for the term of towit, three years, the life and health of plaintiff," and the policy offered in evidence was dated March 15, 1909, and contained the provision:

"This insurance will expire one month from the time this policy is dated at 12 o'clock noon, standard time, at the

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