Connecticut General Life Ins. Co. v. Carter

• Decision Date: 07 October 1970
• Docket Number: 8 Div. 33
• Citation: 46 Ala.App. 222,239 So.2d 895
• Parties: CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Corporation v. R. C. CARTER.
• Court: Alabama Court of Civil Appeals

Page 895

239 So.2d 895

46 Ala.App. 222

CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Corporation v. R. C. CARTER.

8 Div. 33.

Court of Civil Appeals of Alabama.

Oct. 7, 1970.

Almon & McAlister, Sheffield, for appellant.

No brief from appellee.

BRADLEY, Judge.

This is an appeal from a judgment entered on a jury verdict in a suit on a group life insurance policy.

Suit was commenced in this case as a result of a complaint being filed by appellee, R. C. Carter, against appellant, Connecticut General Life Insurance Company, in the Circuit Court of Colbert County, Alabama.

Appellant filed a plea of the general issue and a plea alleging that at the time of his death, the insured, Troy Carter, was over 19 years of age, and was, therefore, not a dependent within the definition set out in the policy sued upon.

At the conclusion of the testimony the appellant requested the general affirmative charge with hypothesis. The court refused and the jury returned a verdict for appellee and assessed his damages at $1,000.00.

Thereafter, appellant filed a motion for a new trial which was overruled and disallowed. Hence an appeal was taken to this court to determine whether the deceased son of appellee was a 'dependent' within the definition set out in the policy of insurance sued upon.

Appellant makes four assignments of error in his appeal. Assignments of error three and four, however, are not argued by appellant in brief and are deemed waived, and will not be considered by the court. Rule 9(d), Supreme Court Rules. Therefore, there are but two assignments of error to be considered by this court on appeal, that being assignments of error one and two.

Assignment of error number one is to the effect that the trial court erred in overruling and denying appellant's motion for a new trial. There are nine grounds assigned in the motion for a new trial.

An assignment of error that the trial court improperly refused to grant a new trial only justifies consideration of any ground stated with sufficient definiteness to direct the court's attention to the alleged erroneous ruling, and the court may consider any ground of the motion which is clear and adequately argued in brief by appellant. Title 7, Section 764, Code of Alabama 1940, as Recompiled 1958; Popwell v. Shelby County, 272 Ala. 287, 130 So.2d 170.

Grounds numbered two, four, five, six, seven and eight under the above rule are not to be considered on appeal, as they are not argued in brief by appellant. This leaves grounds one, three and nine for consideration.

Ground three of the motion for a new trial can be quickly disposed of as it is too general for consideration. It simply states:

'For that the verdict of the jury is contrary to the law in this case.'

It has often been stated that when the ground for a motion for a new trial is that the verdict is contrary to the law, a general assignment has been made and will be disregarded; the respects in which the verdict is contrary to the law should be specified. Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785; Waldrop v. Langham, 260 Ala. 82, 69 So.2d 440.

The next ground to be considered is ground number one. It is to the effect that the verdict of the jury is contrary to the great weight and preponderance of the evidence in this case. Such a ground requires this court to consider the evidence to see if, allowing all reasonable presumptions in favor of the correctness of the verdict, the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. McDuffie & Sons v. Weeks, 9 Ala.App. 282, 63 So. 739.

There is no dispute in the evidence. It consisted of pertinent features of the group policy of life insurance which was the basis of the suit, and the certificate of insurance issued to the appellee as well as proof of the fact that appellee's deceased son was nineteen years, four months and twelve days old at the time of his death.

The evidence shows that appellant issued three group policies of insurance to appellee's employer. One group policy, number 32343--01, the one with which we are concerned here, was for life insurance. Another policy, number 32343--03, was for comprehensive medical expense benefits; and the third policy, number 32343--03, was for accidental death and dismemberment.

The evidence further shows that the group life insurance policy issued to appellee's employer contains the following definition of a dependent eligible for life insurance coverage:

'The term 'dependent' shall mean * * * such of the employee's children as are over fourteen days of age but under nineteen years of age and numarried; * * *.'

Under the terms of the group life insurance policy a certificate of insurance was issued to the policyholder employer and in turn issued to the appellee.

The certificate of insurance stated as follows:

'DEFINITION OF DEPENDENT

'(Applicable only to Group Life Insurance for Dependents)

'The term 'dependent' as used in this certificate means * * * (b) children of the employee who are over 14 days of age but under 19 years of age and unmarried; excluding any individual qualifying as an employee.

'DEFINITION OF DEPENDENT

'The term 'dependent' as used in this certificate means * * * (c) such of the employee's children as are 19 years of age or over but under 23 years of age and unmarried and are enrolled as fulltime students * * *.'

The certificate of insurance also says that it is, 'subject to the terms of those policies * * *.'

The certificate finally states that it:

'* * * will in no way void any of the terms and conditions contained in the group insurance policies. * * *'

The master policy issued to the employer, on the other hand, provides:

'This certificate will in no way void any of the terms and conditions outlined in the policy but will show the insurance protection to which the employee is entitled * * *.'

The master policy further states:

'The policy and the application of the Employer, copy of which is attached to and made a part of this policy, and the applications of the employees, if any, shall constitute the entire contract between the parties. * * *

'The rights of the Employer or any employee or Beneficiary shall not be affected by any provision other than one contained in the policy * * *, or in the copy of application of the Employer * * * or in the individual applications of the employees, if any.'

Appellee contends that the second definition of 'dependent' quoted above and found in the certificate is binding on the appellant and entitles the appellee to recover. In reply, appellant contends that the second definition of 'dependent' applies only to the coverage of the other group policies and not to the group life insurance.

To support his argument, appellant cites us to the case of White v . Massachusetts Mut. Life Ins. Co., 275 Ala. 581, 157 So.2d 6.

In White, supra, a group life insurance policy was issued by appellee to a Mr. White, the husband of the appellant. The master...