Com. Life Ins. Co. v. Barr

• Decision Date: 08 November 1928
• Docket Number: 6 Div. 118
• Citation: 119 So. 11,218 Ala. 505
• Parties: COMMONWEALTH LIFE INS. CO. v. BARR.
• Court: Alabama Supreme Court

119 So. 11

218 Ala. 505

COMMONWEALTH LIFE INS. CO. v. BARR.

6 Div. 118

Supreme Court of Alabama

November 8, 1928

Rehearing Denied Dec. 20, 1928

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action on a policy of life insurance by Ida Mae Barr against the Commonwealth Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Huey &amp Welch and W.G. Stone, all of Bessemer, for appellant.

Benton Bentley & Moore, of Bessemer, for appellee.

BOULDIN J.

The action is on a policy of life insurance.

Under the pleadings and proof, the issue upon the trial was narrowed to one question of fact, viz. Was the first premium paid upon the policy prior to the death of the insured?

Appellant insists it was entitled to the affirmative charge on the evidence. The recited consideration of the policy was the payment of the initial premium at the time of delivery and later premiums as stipulated.

The insured stipulated:

"The company shall not be liable until the application has been received, approved, the policy issued thereon by the company and delivered to me and premium paid during my good health."

Plaintiff's evidence showed the policy was handed to the insured, Earnest B. True, by G.W. Adams, local superintendent and active agent of the insurer, in procuring the application and in delivering the policy; that the insured retained possession and control thereafter until he was killed a week later. The policy was in possession of the beneficiary and offered in evidence on the trial.

The possession of the policy fully executed was evidence of a completed and binding contract; such evidence, unexplained, raised a presumption of payment of the first premium according to its terms. It made a prima facie case, casting the burden of proof on defendant.

This rule, we think, is supported by sound reason and authority, and is in keeping with the general law of contracts. 32 C.J. p. 1204, § 335; 33 C.J. p. 105, § 823; Id. p. 110, § 830; National Life & Accident Ins. Co. v. Winbush, 215 Ala. 349, 110 So. 571.

Mr. Adams, for defendant, testified that, on receiving the policy from the home office of the company, he called upon the insured in person at his place of work to deliver the policy and collect the premium; that he handed the policy to the insured, who then advised him he did not have the money in hand, and requested him to call in the afternoon of the same day; that he did call, and was requested to call the next day, with assurance that the money would be in hand; that on the second call the money was not paid, and, on request, similar calls were made the second and third days; that, no payment being made, it was arranged that the insured call Mr. Adams when he was ready to pay the premium; that no such call was received, and no payment was ever made.

Plaintiff's witness, Kelly Harris, testified to seeing Mr. Adams hand Mr. True the policy, but not to seeing any payment made.

Mr. Perry, for plaintiff, testified to seeing Mr. Adams at the same place after the delivery of the policy, and before Mr. True was killed.

This testimony, so far as it goes, is corroborative of that of Mr. Adams.

In answer to interrogatories filed to defendant, it was stated that the policy was handed to Mr. True to look over, and, if approved, the premium was to be paid on Mr. Adams' return, but that it was never paid. The answers were sworn to by Mr. Adams.

Appellee insists this evidence is in contradiction of the statements of Mr. Adams on the stand, and tends to impeach his credibility. Whatever of variance appears between his statements relates to the explanation or excuse of the witness for the unbusinesslike act of turning over the policy to the insured without collecting or obtaining a showing for the premium. The vital fact of nonpayment appears in all his testimony.

It appears...