Atlanta Life Ins. Co. v. Canady

• Decision Date: 06 October 1932
• Docket Number: 6 Div. 180.
• Citation: 225 Ala. 377,143 So. 561
• Parties: ATLANTA LIFE INS. CO. v. CANADY.
• Court: Alabama Supreme Court

143 So. 561

225 Ala. 377

ATLANTA LIFE INS. CO. v. CANADY.

6 Div. 180.

Supreme Court of Alabama

October 6, 1932

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action by Easter Canady against the Atlanta Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Jim Davis, of Birmingham, for appellant.

Rosenthal & Rosenthal, of Birmingham, for appellee.

KNIGHT J.

Suit by Easter Canady against Atlanta Life Insurance Company. As originally filed, the complaint consisted of two counts. The first count was in Code form on a policy of life insurance issued by the appellant, insuring the life of Robert Canady with the appellee, the insured's mother, as the beneficiary. The second count was for money had and received and was also in Code form. The plaintiff subsequently amended her complaint by adding counts 3 and 4, and by striking from the complaint counts 1 and 2. In the third count, added by amendment, the appellee sought to recover of the defendant, Atlanta Life Insurance Company, the sum of $372 alleged to be due the plaintiff by account on the 15th day of July, 1930. In the fourth count, the plaintiff sought to recover of the defendant the sum of $372 for money had and received by defendant for the use of the plaintiff on, to wit, July 15, 1930.

The defendant filed to the complaint, and to each count, separately and severally, ten pleas. There was a demurrer by the plaintiff to all pleas, except to plea 1, which was a plea of tender, and was substantially in Code form. The court sustained plaintiff's demurrer to pleas 2, 3, 4, 5, 6, 8, and 10, thus leaving in the case pleas 1, 7, and 9, and upon these pleas issue was joined.

The plaintiff's testimony tended to show that the defendant issued a policy of insurance on the life of her son, Robert Canady, payable on the death of the insured to plaintiff. That this policy was issued and dated August 20, 1928, and that plaintiff paid the company's collecting agent 15 cents each week as the premium on said policy. That after this policy had been issued, and while it was in force, the appellant company wrote a new policy on the life of appellee's son, whereby upon death of the insured, the beneficiary was to be paid $372. The premium on the new policy was 20 cents per week. The plaintiff's testimony further tended to show that at the time of her son's death she had been in possession of the policy over a year, and had paid all premiums due thereon. The testimony of the plaintiff further tended to show that shortly after the death of her son and while his body was in an undertaker's establishment, plaintiff, in company with a son, went to the office of defendant in Birmingham, Ala., and found in the office three women, and that one of the women, after examining the papers, gave the plaintiff the company's check for $372 in settlement of the claim. That plaintiff left with the defendant the policy, proof of death, and the doctor's certificate, and then plaintiff carried the check to the undertaker, who had the body of plaintiff's son in charge, and presented the check to him, presumably to pay burial expenses. That the undertaker then had a telephone conversation with some one in defendant's office, as a result of which plaintiff was instructed to return to the office. On her return, the plaintiff was required to surrender the check; the defendant's agent saying that it was improperly issued for $372, that the proper amount was $93, one-fourth of the face of the policy, in view of the fact that the insured had died before full six months had elapsed since the policy was issued.

The defendant's testimony tended to show that the first policy issued by it to Robert Canady was a "sick and accident" policy. That Robert Canady paid the premiums, about three in number, and then allowed the contract to lapse. That this policy was not converted into a life policy, and that it was never so converted. That the only life policy issued by the appellant on the life of Robert Canady was issued and dated January 27, 1930. That this policy was numbered 1606593, a copy of which alleged policy was introduced in evidence. One of the clauses of said policy provided that if death of the insured occurred before six months had elapsed that the death benefit would be one-fourth of the face of the policy-the face of the policy was $372. Defendant's testimony further tended to show that, before the suit was brought, the defendant tendered to plaintiff's attorney $93, being one-fourth of the face of the policy, in full settlement of the claim, which was not accepted.

Defendant's testimony further tended to show that no agent or representative of the company had authority to settle or pay death claims in the Birmingham office, but all such claims were forwarded to, and settled in, the home office at Atlanta, and that the home office had not authorized the issuance of any check to the appellee for $372, nor had any such check ever been drawn or issued to the appellee. That the paper written in the Birmingham office and handed to appellee was the company's receipt for death proof, book, and policy on the life of Robert Canady, and not the company's check. It also appears from the evidence that the tender alleged to have been made by the defendant company was made by check dated July 26, 1930, dated at Birmingham, drawn on the First National Bank of Birmingham, in the sum of $93, payable to the order of Easter Canady, and signed, "Atlanta Life Insurance Co., J. T. Harrison, D. M'g'r., Mary L. McGinnis, Cashier."

It is first insisted that the court committed error in overruling appellant's objection to the following portion of the opening statement of appellee's counsel to the jury "Insured his life," which words formed a part of the following statement: "Gentlemen of the jury, this is a case of Easter Canady, right there, this old colored woman, against the Atlanta Life Insurance Company, a colored insurance company, for the sum of three hundred and seventy-two dollars. We expect the evidence to show you this Easter Canady, this old woman, had a son by the name of Robert Canady; and that some time in August 1928, she insured his life with this company." No grounds of objection were assigned. While the complaint, after amendment, did not contain a count upon the policy of insurance, yet plaintiff's contention, and the theory upon which she sought a recovery in the case, was that the insurance policy had, in fact, been in force and effect for more than a year prior to the death of the insured, that proof of death had been duly and properly presented to, and filed with the company, that the amount due the assured thereunder had been fixed and agreed upon, and that a check in her favor, as the beneficiary, had been issued and delivered to her; that this check had been recalled improperly, and that, therefore, the claim was enforceable by suit upon an account. If plaintiff's contention in this regard finds support in the evidence, she had the right to proceed...