Continental Casualty Co. v. Ogburn

• Decision Date: 14 February 1914
• Citation: 64 So. 619,186 Ala. 398
• Parties: CONTINENTAL CASUALTY CO. v. OGBURN.
• Court: Alabama Supreme Court

64 So. 619

186 Ala. 398

CONTINENTAL CASUALTY CO. v. OGBURN.

Supreme Court of Alabama

February 14, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by Lula Ogburn against the Continental Casualty Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles A. Calhoun, of Birmingham, for appellant.

Riddle Ellis, Riddle & Pruet, of Columbiana, and Black & Davis, of Birmingham, for appellee.

GARDNER J.

This is the second appeal in this cause; the former appeal being reported as Continental Casualty Company v. Ogburn, 175 Ala. 357, 57 So. 852.

The first assignment of error relates to the ruling of the court in sustaining plaintiff's (appellee's) objection to the filing of plea 3, and in striking said plea from the file. The ruling of the court in this particular appears only in the record, being found in the minute entry, and no reference thereto is made in the bill of exceptions.

It is well established by the decisions of this court that rulings of a trial court upon motions to strike certain pleadings must be shown by bill of exceptions; and that when not so presented on appeal such rulings will not be reviewed. Southern Railway Company v. Crenshaw, Adm'r, 136 Ala. 573, 34 So. 913; Culver v. Caldwell, Adm'r, 137 Ala. 125, 34 So. 13; Holley v. Coffee, 123 Ala 406, 26 So. 239; K.C., M. & B.R.R. Co. v. Butler, 143 Ala. 262, 38 So. 1024.

2. It is next insisted that the court erred in refusing the affirmative charge. This insistence is based, first, upon the averments of plea 4, which sets up the failure to furnish proof of the injury within the time and in the manner prescribed by the policy. To this plea, replications were filed, raising the same point decided by this court on the former appeal wherein this court held replications 3 and 7 not subject to the demurrer interposed.

Pertinent to this insistence here, and, in our opinion, conclusive thereof, we quote the following from the opinion on the former appeal (175 Ala. 362, 57 So. 854): "Nor can we say that the trial court erred in refusing the general charge for the defendant, upon the theory that the plea proven and the plaintiff failed to prove said replications. The plaintiff addressed a letter to the defendant dated September 9th, which was received within 30 days after the death of the insured, informing it of the claim, death of the insured, and the cause of same, which was treated with silence. Then, too the defendant, on September 21st (after receipt of her letter and within 30 days after the death of her husband), wrote her, making no allusion to said defective proof sent them or to her demand, settling with her on the disease rather than accident basis, and demanding a surrender of the policy. The jury could well infer a refusal to pay the death claim, not for failure to furnish the requisite proof, but upon the ground that the death of the assured resulted from disease and not from accident."

Counsel for appellant urge, as a second reason why the affirmative charge should have been given, that under the terms of the policy, to create liability, the assured must have sustained an injury, through external, violent, and purely accidental means, which caused, at once and continuously after the accident, total inability to engage in any labor or occupation, whereas the proof was without conflict that the assured did engage in labor thereafter.

This feature of the policy was treated in the opinion on the former appeal.

The witness George Rogers testified on the direct examination that the assured "never did work any more after that day. He tried to work, but he never did work any more. He made two or three efforts to work after that, but he never did no more work after that, and after he was hurt he stayed at his house a good deal." In view of this testimony, as well as that of this witness as to the character of the accident, and of all the facts and circumstances in the case, we are of the opinion that this issue was properly left to the determination of the jury and that the affirmative charge was correctly refused.

Appellant (defendant in the court below) moved the court for a new trial, which motion was overruled. Grounds 6 and 7 of said motion are predicated upon alleged misconduct of the jury and of the judge....