Atkinson v. Travelers' Ins. Co. of Hartford

• Decision Date: 14 November 1918
• Docket Number: 7 Div. 942
• Citation: 202 Ala. 226,80 So. 48
• Court: Alabama Supreme Court
• Parties: ATKINSON v. TRAVELERS' INS. CO. OF HARTFORD.

80 So. 48

202 Ala. 226

ATKINSON v. TRAVELERS' INS. CO. OF HARTFORD.

7 Div. 942

Supreme Court of Alabama

November 14, 1918

Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.

Suit by Thomas W. Atkinson against the Travelers' Insurance Company of Hartford. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Culli &amp Martin and Dortch & Allen, all of Gadsden, for appellant.

O.R Hood, of Gadsden, for appellee.

GARDNER J.

This is a suit upon an accident insurance policy. The first trial of the cause was upon its merits, resulting in a judgment for the plaintiff, from which the defendant prosecuted an appeal to this court, with the result of a reversal of the judgment. Upon the next trial of the cause additional pleadings were filed by the plaintiff, and from the adverse rulings of the court on the pleadings plaintiff took a nonsuit, and brought the case here for review. For a full statement and understanding of the cause reference is made to the opinion on former appeal. Travelers' Ins. Co. v Atkinson, 73 So. 903.

The report on the former appeal discloses that the premiums for the policy were payable in four installments, and said premiums were for separate and consecutive periods of two two, three, and five months, and that each of said premiums should apply only to its corresponding insurance period.

It was held on former appeal that the order given by the insured to his employer called for the payment of separate premiums out of the wages of the insured earned during a certain month, and that the fourth premium was to be deducted from wages earned during the month of August. This fourth premium was never paid, and it was held by this court that, as no wages were earned by the insured during the month of August, therefore the employer had no funds in his hands with which to pay said premium, and that under the order given by the insured the employer was only authorized to pay such premiums out of wages earned during that particular month. The injury occurred during the period for which the premium was not paid, and this is the defense which was interposed.

We are of the opinion that what was said by this court on the former appeal is conclusive also of the present appeal, adversely to the appellant.

Counsel for appellant insist that the construction given to the contract and order on the former appeal is erroneous. We have carefully reviewed our former opinion, and we are still fully convinced of its correctness, and that it is fully supported by the following authorities: Bane v. Travelers' Ins. Co., 85 Ky. 677, 4 S.W. 787; Reed v. Travelers' Ins. Co., 117 Ga. 116, 43 S.E. 433; McMahon v. Travelers' Ins. Co., 77 Iowa, 229, 42 N.W. 179; Employers' Liability Assur. Corp. v. Rochelle, 13 Tex.Civ.App. 232, 35 S.W. 869.

Counsel for appellant lay much stress upon the recent decision by this court in the case of Continental Casualty Co v. Vines, 78 So. 392; but upon an examination of that case we find no conflict whatever in what was there held and the ruling in this cause on former appeal. In fact, we are cited to no authority that, in our opinion, is in conflict with the former holding or with the cases above cited supporting the same. The case of Lyon v. Travelers' Ins. Co., 55 Mich. 141, 20 N.W. 829, 54 Am.Rep. 354, is referred to in some of the above-cited authorities, and is distinguished therefrom. See, also, Landis v. Standard Life & Accident Ins. Co., 6 Ind.App. 502, 33 N.E. 989; Geddes v. Ann Arbor R.R., etc., Ass'n, 178 Mich. 486, 144 N.W. 828.

Plea 4 sets out the provisions of the policy, providing for the payment of four separate premiums, and the further provision that the policy should not be in effect during the period for which the premium had not been...