Christian Benevolent Burial Ass'n v. Huff

• Decision Date: 20 February 1941
• Docket Number: 1 Div. 138
• Citation: 241 Ala. 119,1 So.2d 390
• Parties: CHRISTIAN BENEVOLENT BURIAL ASS'N, INC., v. HUFF.
• Court: Alabama Supreme Court

1 So.2d 390

241 Ala. 119

CHRISTIAN BENEVOLENT BURIAL ASS'N, INC., v. HUFF.

1 Div. 138

Supreme Court of Alabama

February 20, 1941

Rehearing Denied April 3, 1941.

Geo. A. Sossaman, of Mobile, for appellant.

J Terry Reynolds, Jr., of Mobile, for appellee.

BROWN Justice.

This is an action of assumpsit by the beneficiary named in a policy of burial insurance against the insurer to recover the sum of $125, with interest, designated in the policy as the "retail value of funeral if insured is twenty years of age at date of death."

One of the counts of the complaint avers "that the defendant wholly neglected and refused to provide a funeral for Willie Richardson as provided by the terms of said policy," to plaintiff's damage.

The defendant interposed the plea of "not guilty" which was treated by the parties and the court as the general issue. The statute provides that in all actions except defamation, or for injuries to the person or to real or personal property "the general issue is an averment that the allegations of the complaint are untrue, and except as may be otherwise provided, puts in issue only the truth of such allegations." Code 1923, § 9470.

The defendant's special plea 2, to which demurrer was sustained, set up a forfeiture of the insurance for nonpayment of the weekly premiums. However, on the trial under the plea of "not guilty" the defendant was permitted to offer evidence going to show forfeiture for nonpayment of premiums, the plaintiff was permitted to adduce evidence going to show knowledge and waiver, and the court in the oral charge clearly submitted these issues to the jury with full instructions thereon. Therefore, if it should be conceded that error intervened in the ruling on the demurrer to plea 2, it was error without injury. Birmingham Water Works Co. v. Barksdale, 227 Ala. 354, 150 So. 139; Atlantic Coast Line R. Co. v. Jackson, 225 Ala. 652, 144 So. 813.

Under the evidence adduced on the trial the issues were for the jury, and the affirmative charge requested by the defendant was properly refused.

Defendant's refused charges 2, 3, and 4 were refused without error; they were bad in form. City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937; Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 So. 40.

We find no reversible errors in the record.

Affirmed.

GARDNER, C.J., and THOMAS and FOSTER, JJ., concur.

On Rehearing.

BROWN Justice:

There was evidence going to show that the insured had all of Wednesday, the 21st of February, to pay the premiums for four weeks ending on that day, and prevent a forfeiture. The plaintiff testified: "The agent of the Christian Benevolent Funeral Association came to my house in the day light of the 21st day which was Wednesday and I had a conversation with him relative to the payment of the premiums on Willie's burial policy. He came to me and asked me did I have any money for him and I hold him no and that I would not have it until Saturday, that was on a Wednesday, and he told me that was perfectly all right because I had done business in his company all of the time since he was in business and he had given me no receipt like that before. On Thursday I got the money and sent it up there and it was somewhere between 2:30 and 3 o'clock. He told me he would accept it." [Italics supplied.]

Said agent, if the testimony is to be believed, spoke as one having authority, and the defendant did not offer said agent or any other witness to contradict this testimony, though most of the officers and agents testified. This failure weighed against the defendant, and authorized an inference that the testimony of said agent would have been detrimental. Blue v. First Nat. Bank of Elba, 200 Ala. 129, 75 So. 577; Carter v. Chambers, 79 Ala. 223, 231; Alabama Power Co. et al. v. Talmadge, 207 Ala. 86, 93 So. 548.

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