Batson v. Fidelity Mut. Life Ins. Co.

• Decision Date: 14 May 1908
• Citation: 155 Ala. 265,46 So. 578
• Parties: BATSON v. FIDELITY MUT. LIFE INS. CO.
• Court: Alabama Supreme Court

46 So. 578

155 Ala. 265

BATSON v. FIDELITY MUT. LIFE INS. CO.

Supreme Court of Alabama

May 14, 1908

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Mary Francis Batson against the Fidelity Mutual Life Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Pinkney Scott, for appellant.

Cabaniss & Bowie, for appellee.

DOWDELL J.

This is an action upon a life insurance policy. The defendant filed four pleas to the complaint. The first and second pleas were a general denial of the allegations of the complaint. The third and fourth pleas set up special matters of defense. Issue was joined on the first three pleas, and special replications were made to the fourth plea, to which demurrers were interposed and sustained. We pretermit consideration of the ruling of the court below on the demurrers to the replications, since any consideration of these rulings, in the view we take of the case, is unnecessary to a final determination of the cause.

The third plea, on which issue was taken by the plaintiff, set up a failure by the assured to pay the initial premium on the policy, a nonpayment of which by the terms of the contract rendered the policy invalid. The provisions in the contract of insurance in the case before us are much the same as those in the case of Powell v. Prudential Ins. Co. of America decided at the present term of this court and reported in 45 So. 208. The principles of law stated in that case and the authorities there cited find ready application here. The contract here sued on provides in terms that it "shall not be operative and binding until the actual payment of the initial premium and delivery of the policy during the lifetime and good health of the assured." It is also stipulated in the contract and agreed to by the assured that no agent of the company has the power or authority "to grant credit, or to extend the time for paying any premium or to waive any forfeiture, or to bind the company by making any promise, or by making or receiving any representation or information; it being agreed that such power can only be exercised in writing by the president, vice president actuary, or assistant actuary of the company, at its head office, and shall not be delegated."

The undisputed evidence is that the initial premium was never paid. The soliciting agent, who delivered the policy together with the receipt introduced in evidence, instead of collecting and receiving from the assured the initial premium,...