Bankers' Credit Life Ins. Co. v. Lee
| Decision Date | 24 March 1932 |
| Docket Number | 6 Div. 935. |
| Parties | BANKERS' CREDIT LIFE INS. CO. v. LEE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Action on a policy of life insurance by Loyd Lee against the Bankers' Credit Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.
Reversed and remanded.
Harsh & Harsh, of Birmingham, for appellant.
W. A Jacobs, of Birmingham, for appellee.
Action of assumpsit by the beneficiary on a policy of life insurance. The case was submitted to the jury on the first count of the complaint, which follows the form prescribed by the statute (Code § 9531, form 12), except as to the statement of the date of the policy, which is stated as follows: "*** whereby the defendant at some time during the last part of the year 1929 or January 1930, a more definite date being unknown to the plaintiff, insured the life of Ed Lee, who died on the third day of February 1930." (Italics supplied.)
The defendant demurred to this count on grounds, among others that "the date when said policy took effect is not averred or shown," and "for aught that appears, the time covered by said policy had expired before the death of said Ed Lee."
It must be conceded that the form prescribed by the statute reduces to a minimum, averments necessary to state a cause of action, and we are of opinion that the demurrer was well taken. Schwartz Motor Co. et al. v. Bradley Real Estate & Ins. Co., 220 Ala. 295, 125 So. 26; Jefferson County v. Gulf Refining Co. of Louisiana, 202 Ala. 510, 512, 80 So. 798.
We are, however, constrained to hold in this case that this was error without injury, for the reason that it appears without dispute that only one policy had been written in respect to said Ed Lee in which the plaintiff was named as beneficiary, and this policy was in the defendant's possession at the time this suit was filed, and therefore it had knowledge of the date of the policy, and when it took effect.
The authorities justifying the application of the doctrine of error without injury are referred to in the opinion of the court in the case first above cited.
The general issue was pleaded, in short by consent, with leave, etc.
It is without dispute that the policy of insurance offered in evidence was in the hands of the insured before his death, and that the policy was found among his papers after his death by the plaintiff, with a receipt, the contents of which were not known; that Lee died on the 3d day of February, 1930, and on the following day the policy, with proof of death and other papers accompanying the policy, were delivered to the defendant's agent Russell, who signed the confidential report appended to the application for insurance as "T. B. Russell, Vice-Pres., Soliciting Agent."
These papers were mailed by Russell to the defendant, who received them, but declined to accept the proof of death. The policy itself recites: "This policy is issued and accepted in consideration of the application therefor and the payment in advance of the annual premium for the first policy year and annually thereafter as herein provided."
The defendant's major contention on the trial, and here, is that the first premium was never paid, and that the policy was not delivered to Lee during his life, but was through mistake of some one connected with the bank at Childersburg Ala., through which the transaction was handled, placed in the mails in an envelope addressed to said Lee; said envelope being prepared at the home office in Birmingham and inclosed with the policy when it was mailed to Russell at the Childersburg bank, for the purpose of...
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