Bell v. National Life & Acc. Ins. Co.

• Decision Date: 04 October 1960
• Docket Number: 4 Div. 423
• Citation: 41 Ala.App. 94,123 So.2d 598
• Parties: Mattie M. BELL v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.
• Court: Alabama Court of Appeals

Page 598

123 So.2d 598

41 Ala.App. 94

Mattie M. BELL v. NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.

4 Div. 423.

Court of Appeals of Alabama.

Oct. 4, 1960.

Lee & McInish, Dothan, for appellant.

Merrill & Harrison, Dothan, for appellee.

PRICE, Judge.

This is an appeal by the plaintiff from a judgment of nonsuit taken by her with leave to review the rulings of the trial court on the pleadings. Sec. 819, Title 7, Code 1940.

The complaint claimed $1,000 under a policy of insurance issued by the defendant on the life of one Johnnie M. Brooks, with plaintiff named as beneficiary.

Defendant's pleas 2 and 3 aver that the plaintiff was the niece of the insured; that plaintiff lived in Dothan, Alabama; that insured did not live with plaintiff, but that he had lived in New York City for twenty-three years prior to his death; that plaintiff procured the issuance of the policy sued on upon the life of Johnnie M. Brooks and named herself as the beneficiary therein; that plaintiff had paid the premiums on said policy and that the amount of all the premiums paid on the policy, with interest thereon, was tendered and paid into court for the plaintiff. The concluding averment in plea 2 is:

'Wherefore defendant avers that since plaintiff had no insurable interest in the life of said insured, Johnnie M. Brooks, deceased, as hereinabove set forth, and defendant having tendered into this Honorable Court for the plaintiff, said premiums on said policy, together with interest thereon, as hereinabove set forth, this defendant is not liable in this cause, except for said premiums.'

Plea 3 after the facts relied on were alleged, concluded: 'Wherefore, defendant avers that plaintiff had no insurable interest in the life of Johnnie M. Brooks, deceased, etc.'

The plaintiff demurred to these pleas, and, demurrer being overruled, filed replications to said pleas, setting up that she had an insurable interest in the life of her uncle because plaintiff, upon his death, would be responsible for his funeral and burial expenses; that prior to the purchase, issuance and delivery of the policy sued on, plaintiff's aunt, Lillie Mae Brooks, died without funds for her burial and plaintiff and plaintiff's mother were forced to expend the necessary sams for the funeral and burial of said aunt; that it came to plaintiff's attention that Lillie Mae Brooks had an insurance policy with defendant and she contacted defendant's agent, who advised her that Lillie Mae Brooks had dropped or terminated the policy; that she informed defendant's agent that she and her mother had been forced to pay the expense of the funeral and burial of Lillie Mae Brooks; that thereupon defendant's agent advised her that the purpose of insurance was to take care of such situations. The replications aver that the policy sued on was procured at the instance of defendant's agent, acting within the line and scope of his authority, and with full knowledge of all the facts and that defendant is now estopped to assert a want of insurable interest as a defense.

The defendant demurred to these replications. The court sustained the demurrer and the plaintiff took a nonsuit. Plaintiff assigns as error the overruling of her demurrer to the pleas and the sustaining of the demurrer to the replications.

On appeal we treat only those grounds of demurrer to the pleas argued in brief, and those not insisted upon are considered as waived. Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 61 A.L.R.2d 1346.

Appellant in brief does not point out any ground of the demurrer insisted upon by number, but does argue that the allegation in plea 2 that 'Wherefore, defendant avers that since plaintiff had no insurable interest in the life of said insured, etc.,' is but a conclusion of the pleader.

This contention is without merit. 'It is sometimes permissible and necessary for a pleader to draw conclusions where facts are alleged that tend to support the conclusion. Birmingham Ry., Light & Power Co. v. Gonzalez, 183 Ala. 273, 61 So. 81, Ann.Cas.1916A, 543. It is only 'mere conclusions' or 'bald conclusions,' without supporting facts which are objectionable in pleading.' Roberts v. State ex rel. Cooper, 253 Ala. 565, 46 So.2d 5, 7; See also White v. State, 253 Ala. 645, 46 So.2d 413; Preston v. LaSalle Apartments, 241 Ala. 540, 3 So.2d 411; Poole v. William Penn Fire Ins. Co., 264 Ala. 62, 84 So.2d 333; Sauls v. Leath, 213 Ala. 664, 106 So. 133. The pleas were not subject to the ground of demurrer insisted upon in brief.

It is settled in this state that the mere relationship in uncle or aunt and nephew or niece does not constitute an insurable interest. Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696, 61 A.L.R.2d 1346; Commonwealth Life Ins. Co. v. George, 248 Ala. 649, 28 So.2d 910, 170 A.L.R. 1032; National Life & Accident Ins. Co. of Nashville, Tenn. v. Alexander, 226 Ala. 325, 147 So. 173; National Life & Accident Ins. Co. v. Middle-books, 27 Ala.App. 247, 170 So. 84. Appellant recognizes this principle and in brief says:

'Appellant does not base her claim of incurable interest upon the relation with the insured who now is deceased. She does base her claim upon the single fact that if that uncle, the insured, died she would have the responsibility of paying his funeral and burial expenses.'

In Commonwealth Life Ins. Co. v. George, supra, the court, discussing insurable interest, said [248 Ala. 649, 28 So.2d 912]:

'It is, of course, well established that one cannot take out a valid and enforcible policy of insurance for his own benefit on the life of a person in which he has no insurable interest. Such a policy or contract of insurance is void and unenforcible on ground of public policy, it being merely a wagering contract. The decisions are also to the effect that such a policy is void at its inception and is not rendered valid by a clause declaring it incontestable after a specified period of time. The reasoning found in the cases is based upon the presumption that a temptation would be held out to the one taking out the policy to hasten by improper means the time when he should receive the amount of insurance named in the policy. Good faith alone will not suffice to sustain a policy taken out on the life of another by one who has no interest in the continuance of such life. If good faith alone would sustain the contract then the law which condemns such transaction upon the ground of public policy would, as observed by the Virginia court in Crismond's Adm'x v. Jones, 117 Va. 34, 83 S.E. 1045, Ann.Cas.1917C, 155, avail but little. 37 C.J. pages 385, 386. And, by the decided weight of authority, the relationship between uncle or aunt and nephew or niece is not in itself sufficient to support a policy taken by one on the life of the other. 37 C.J. page 394. That such was the well settled rule of law was recognized by this court in National Life & Accident Ins. Co. v. Alexander, supra.

'In Volume 1 of Cooley's Briefs on Insurance, Second Edition, page 385, under the text statement that 'The relationship of uncle or aunt and nephew or niece will not support an insurable interest,' are cited a large number of decisions from various jurisdictions. And, indeed, our search thus far has disclosed no authority holding to a contrary view.

'The observation of the court in Warnock v. Davis, 104 U.S. 775, 26 L.Ed. 924, in regard to what is an insurable interest has been often cited by text books and by decisions generally.

There it was recognized that it was not easy to define with precision what in all cases would constitute an insurable interest so as to take the contract out of the class of wager policies. In a helpful note to the case of Young v. Hipple, 25 A.L.R. 1541, the author has succinctly stated the rule as observed in the Warnock case, which is here worthy of repetition. 'As there is much conflict among the authorities on the general question as to what constitutes an insurable interest, it may be helpful at the outset to bear in mind the statement of the Federal Supreme Court on this question, to the effect that it is...