Box v. Metropolitan Life Ins. Co., 7 Div. 59

CourtAlabama Court of Appeals
Writing for the CourtBRICKEN, Presiding Judge.
Citation168 So. 209,27 Ala.App. 21
PartiesBOX v. METROPOLITAN LIFE INS. CO.
Docket Number7 Div. 59
Decision Date05 June 1934

168 So. 209

27 Ala.App. 21

BOX
v.
METROPOLITAN LIFE INS.
CO.

7 Div. 59

Court of Appeals of Alabama

June 5, 1934


Rehearing Denied Oct. 2, 1934

Reversed on Mandate Jan. 22, 1935

Rehearing Denied Feb. 26, 1935

Affirmed after Mandate Nov. 5, 1935

Rehearing Denied Jan. 14, 1936

Appeal from Circuit Court, Calhoun County; W.B. Merrill, Judge.

Action on a policy of insurance by John T. Box against the Metropolitan Life Insurance Company. From a judgment for defendant, plaintiff appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in (7 Div. 273) 168 So. 216.

Certiorari granted in (7 Div. 317) 168 So. 217.

Certiorari denied in (7 Div. 369) 168 So. 220.

Alleged error in exclusion of evidence held not reversible where, even if evidence had been admitted, insured would still lack a scintilla of evidence to support essential averment that insurer denied liability on sole ground that insured was not totally and permanently disabled. [168 So. 210]

[27 Ala.App. 22] Defendant's plea in abatement is as follows:

"Comes the defendant in the above entitled suit and for plea in abatement to the said cause of action says as follows viz.: That the policy sued on recites as follows, viz 'Any employee insured 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.'
"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 defendant further avers that it has not denied liability on the said certificate and policy sued on, before the said suit."

Plaintiff filed these replications to said plea:

"1. It is shown in the complaint that before the beginning of this suit defendant denied liability under this claim upon the sole ground of its contention that plaintiff was not permanently and totally disabled as in the complaint alleged and it thereby waived the right to delay suit, if such it had, under the policy provision quoted in said plea.

"2. For that the policy provision quoted in said plea, to-wit: 'Six months after the receipt of due proof of such disablement the Insurance Company will begin making payments of the amount of the insurance under any one of the following plans at the option of the insured,' presents no cause for an abatement of this suit, for to-wit: The object of this provision is to give defendant [168 So. 211] an opportunity to investigate the claim upon its denial of liability, such as defendant is shown in the complaint to have made, it impliedly admits ample investigating time and the denial operates as an invitation to sue without further delay.

"3. For that said plea in abatement is no answer to the suit because it is shown in the complaint that defendant denied liability on the contention that defendant was not afflicted with total disability and, in making this denial on the one ground, it waived all others, including the right to set up in abatement, the said policy provision ***.

"4. For that the policy provision set up in said plea in abatement *** cannot operate as an abatement of this suit and for reason that under its terms, it makes no provision for the delay of suit, applying only to payments and under count one of the complaint judgment could be rendered [27 Ala.App. 23] and payment delayed in accordance with the terms of the policy.

"5. For that the policy provision in said plea *** cannot operate in abatement of this suit, for, to-wit: Count one claiming installments in the regular order of payment, shows that defendant denied liability on the contention that plaintiff was not permanently and totally disabled, which plaintiff here avers was the sole ground upon which said denial was based, and he avers that in such denial, defendant waived all other grounds of defense, including the policy provision herein quoted.

"6. For that the policy provision in said plea, *** cannot operate as an abatement of this suit for to-wit: Count one of the complaint shows that defendant denied liability upon the contention that plaintiff was not permanently and totally disabled, which plaintiff here avers was the sole ground upon which said denial was based, and in said count it is alleged that, in this course defendant waived the right to delay payment of any part thereof.

"7. For that the policy provision in said plea *** cannot operate as an abatement of this suit for to-wit: Count three of the complaint shows that defendant denied liability upon the contention that plaintiff was not permanently and totally disabled, which plaintiff here avers was the sole ground upon which said denial was based, and in said count it is alleged that, in this course defendant waived the right to delay payment of any part thereof, but, with reduction to the extent of the interest on the several installment payments for the period of time payment of said installments is made in advance of the maturing time provided in said policy, and, as and for a rate making basis, he elects to and does take the option right of five annual installments of $214.00 each.

"8. Plaintiff avers that said plea cannot operate as an abatement of this suit, for to-wit: Before the bringing of this suit it denied liability under this claim upon the sole ground of its contention that plaintiff was not permanently and totally disabled, which operated as a challenge for plaintiff to abandon the claim or sue; that he then brought this suit, incurred expense and trouble in so doing and defendant is therefore estopped from setting up plea in abatement of the suit which its action invited and caused.

Replication 9 is the same as No. 5, but with the following additional averments: "And plaintiff avers further that, if he is mistaken in his claim in said count one that under the terms of the policy, certain of the installment payments are due as therein alleged, then he waives and withdraws that portion of said count alleging that certain installment payments of said policy are due and here makes claim for full amount to be paid through installments in accordance with the terms and provisions of said policy. He further avers that said six months provision, as set up in said plea is specifically applied to the time when payments shall begin, makes no reference to suit. He, therefore, avers that, when defendant denied liability on the sole ground, as herein alleged, it opened the way for and authorized suit for determination of the rights of the parties. He avers that, as shown in said count, defendant denied liability May 24, 1933, having then completed its investigation, and he therefore claims the full amount, with first installment payment to begin six months from that date."

"11. For that the provision of policy in suit and quoted in plea in abatement *** does not present a valid ground for abatement of this suit, for to-wit: That after plaintiff had sent defendant notice of his disability and claim for compensation under the policy in suit, defendant undertook an investigation on its own account, and after some correspondence with his attorney about said claim defendant did on or about May 15th, 1933, in connection with this claim and in reference thereto, wrote the attorney for plaintiff a letter which carried statement: 'This acknowledges [168 So. 212] your communication of May 3, and enclosure. We have thoroughly investigated your client's claim, and we are unable to allow indemnity. We are informed by the former employer, that he was employed by them from about April 9, 1922, up until June 13, 1931. During May, 1931, the Anniston Manufacturing Company made a survey of their labor utilization and a new program was put into effect on June 15, 1931. This involved the consolidation and elimination of various jobs in their plant, one of which was held by your client, John Box. That he was not in first class physical condition. Had his job not been eliminated, he would have in all probability, performed his work in the customary manner subsequent to June 15th, 1931.' That on May 18th,...

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8 practice notes
  • Thornhill v. State of Alabama, No. 514
    • United States
    • United States Supreme Court
    • April 22, 1940
    ...previous decisions in the Alabama courts. 4 O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 So. 206, certiorari denied, 232 Ala. 355, 168 So. 209; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657. A petition for certiorari was denied by the Supreme Court of the State. The case ......
  • Box v. Metropolitan Life Ins. Co., 7 Div. 317
    • United States
    • Supreme Court of Alabama
    • May 2, 1935
    ...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 Ap......
  • Box v. Metropolitan Life Ins. Co., 7 Div. 369
    • United States
    • Supreme Court of Alabama
    • March 26, 1936
    ...for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Box v. Metropolitan Life Ins. Co., 168 So. 209. Writ denied. See, also (Ala.Sup.) 168 So. 216; and (Ala.Sup.) 168 So. 217. [168 So. 221] Chas. F. Douglass, of Anniston, for petitioner. Cab......
  • Redd v. State, 4 Div. 153
    • United States
    • Alabama Court of Appeals
    • January 14, 1936
    ...charged the assault must have been of such a nature as that if death had followed the appellant would have been guilty of murder in the [27 Ala.App. 21] first or second degree. He correctly charged them as to the necessary elements of the offense, including intent. The following part of his......
  • Request a trial to view additional results
8 cases
  • Thornhill v. State of Alabama, No. 514
    • United States
    • United States Supreme Court
    • April 22, 1940
    ...previous decisions in the Alabama courts. 4 O'Rourke v. City of Birmingham, 27 Ala.App. 133, 168 So. 206, certiorari denied, 232 Ala. 355, 168 So. 209; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657. A petition for certiorari was denied by the Supreme Court of the State. The case ......
  • Box v. Metropolitan Life Ins. Co., 7 Div. 317
    • United States
    • Supreme Court of Alabama
    • May 2, 1935
    ...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 Ap......
  • Box v. Metropolitan Life Ins. Co., 7 Div. 369
    • United States
    • Supreme Court of Alabama
    • March 26, 1936
    ...for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Box v. Metropolitan Life Ins. Co., 168 So. 209. Writ denied. See, also (Ala.Sup.) 168 So. 216; and (Ala.Sup.) 168 So. 217. [168 So. 221] Chas. F. Douglass, of Anniston, for petitioner. Cab......
  • Redd v. State, 4 Div. 153
    • United States
    • Alabama Court of Appeals
    • January 14, 1936
    ...charged the assault must have been of such a nature as that if death had followed the appellant would have been guilty of murder in the [27 Ala.App. 21] first or second degree. He correctly charged them as to the necessary elements of the offense, including intent. The following part of his......
  • Request a trial to view additional results

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