Box v. Metropolitan Life Ins. Co.

• Decision Date: 02 May 1935
• Docket Number: 7 Div. 317
• Citation: 232 Ala. 321,168 So. 217
• Parties: BOX v. METROPOLITAN LIFE INS. CO.
• Court: Alabama Supreme Court

168 So. 217

232 Ala. 321

BOX v. METROPOLITAN LIFE INS. CO.

7 Div. 317

Supreme Court of Alabama

May 2, 1935

Certiorari to Court of Appeals.

Action by John T. Box against the Metropolitan Life Insurance Company. A judgment for defendant was reversed and the cause remanded by the Court of Appeals (168 So. 209), and defendant petitions for certiorari to review and revise the judgment and decision of that court.

Writ granted, judgment of Court of Appeals reversed, and cause remanded thereto.

See also, 168 So. 216.

Chas D. Kline, of Anniston, and Cabaniss & Johnston, of Birmingham, for petitioner.

Chas F. Douglass, of Anniston, for respondent.

FOSTER Justice.

This is an action for disability benefits provided for in a group policy. The terms of the policy which are controlling are copied in the complaint as follows:

"Any employee under this plan who shall become wholly and permanently disabled while in our employ before reaching the age of 60, either by accidental injury or disease, and is thereby permanently, continuously and wholly prevented from pursuing any and all gainful occupation, will be regarded as a claimant by the Metropolitan Life Insurance Company. Six months after the receipt of due proof of such disablement, the insurance (company) will begin making payments of the amount of insurance under any one of the following plans at the option of the person insured:

"Sixty monthly installments at the rate of $18.00 per thousand dollars of insurance.

"Five annual installments at the rate of 214.00 per thousand dollars of insurance.

"Ten annual installments at the rate of 116.18 per thousand dollars of insurance.

"Fifteen annual installments at the rate of 83.90 per thousand dollars of insurance.

"Twenty annual installments at the rate of 67.98 per thousand dollars of insurance."

In count 1 plaintiff alleged that he had elected to receive the amount so stipulated, $1,000, in five annual installments of $214 each, "the first of which is now due and payable." He further alleged that defendant denied liability on the policy, and, as amended: "Plaintiff avers that defendant has waived and lost the privilege of delaying the beginning of payments for a period of six months from the date of the receipt of proof of disability, through the denial of liability on or about May 24, 1933."

In count 2 he alleged that "the entire amount (presumably $1000.00) is now due for to-wit: that before the bringing of this suit plaintiff notified defendant of his disability, that defendant denied liability on said policy on or about May 24, 1933, thereby waiving the right and privilege of discharging the obligation through installment payments, and also waiving the right to delay payment for a period of six months from date of the receipt of proof."

Count 3 adopts count 2, except that it claims the present value of the installment payments.

After demurrer was sustained to the complaint, the court permitted defendant to withdraw the demurrer and file a plea in abatement.

On former certiorari, we held that the effect of such procedure was to vacate the order sustaining the demurrer; so that the status is as though no demurrer had been interposed. At this stage it was discretionary with the trial court to permit the plea in abatement to be filed, and the Court of Appeals properly held that the circuit court should not be reversed for overruling the motion to strike that plea, since no prejudice to plaintiff appears from so doing. Laseter v. C.I.T. Corporation, 228 Ala. 19, 152 So. 607. The plea, after quoting the policy terms as set out in the complaint, alleged: "That the first proof that the plaintiff sent in to the defendant of his permanent, continuous and whole disability was received by the company, the said defendant, on the 5th day of May, 1933, that the plaintiff filed this suit against the defendant on the 26th day of May, 1933, when the first installment would not be due until November 5th, 1933, that the said suit was prematurely brought, hence the defendant asks that the same be abated." And then alleged by amendment: "And defendant further avers that it has not denied liability on the said certificate and policy sued on, before the said suit." There was then interposed a demurrer to it, which was overruled. Thereupon plaintiff filed replications, demurrer to all of which were sustained, except to that numbered ten. Replication No. 10 is as follows: "10. For that before the bringing of this suit, to-wit: On or about May 24, 1933, defendant denied liability upon the claim involved in this suit upon the sole ground of its contention that plaintiff was not permanently and totally disabled; that it therefore waived formal proof of claim, authorized immediate suit, and he therefore avers that said plea cannot operate as an abatement of this suit."

The suit was tried on the plea in abatement and replication No. 10, resulting in verdict for defendant on those issues, and plaintiff prosecutes this appeal.

The only question treated by the Court of Appeals is whether the plea in abatement is subject to the demurrer, for the reason discussed by that court. It held that the demurrer should have been sustained. The ruling, as we understand the opinion, is based on the theory that because of the allegations of the complaint, a denial of them in a plea of the general issue is appropriate to present the question, and that there is no necessity to plead in abatement under those circumstances. The Court of Appeals also noted that the basic question involved is dependent on the principle that the denial of liability not only waives the requirement for proof, but also the stipulation that payment shall not begin until six months after receipt of due proof.

The first proposition is grounded upon the case of Rainey v Long, 9 Ala. 754. In that case the suit was in assumpsit, and defendant pleaded nonassumpsit. The court charged the jury that under such a plea defendant could not defeat the action because it was brought before the money was due. This court held on appeal that there was no necessity to plead in abatement, but that such defense was available under the general issue. The court had previously held in several cases that a plea in abatement was proper. McKenzie v. McColl, 3 Ala. 516; Jones v. Yarbrough, 2 Ala. 524; Herndon v. Garrison, 5 Ala. 380. It has likewise so held since then. Triple Link Mutual Ins. Ass'n. v. Williams, 121 Ala. 138, 26 So. 19, 77 Am.St.Rep. 34. In that case, the complaint alleged that the money claimed was due; the court observed that if the proofs had not been furnished seasonably before suit, it was matter for plea in abatement. A plea of the general issue may have served the same purpose. Carrico & Son v. J.E. Duval Printing Co., 219 Ala. 65, 121 So. 59; Outcault...