Emergency Aid Life Ass'n v. Henderson

• Citation: 31 Ala.App. 524,19 So.2d 118
• Decision Date: 22 August 1944
• Docket Number: 8 Div. 379.
• Court: Alabama Court of Appeals
• Parties: EMERGENCY AID LIFE ASS'N v. HENDERSON.

19 So.2d 118

31 Ala.App. 524

EMERGENCY AID LIFE ASS'N v. HENDERSON.

8 Div. 379.

Alabama Court of Appeals

August 22, 1944

Appeal from Morgan County Court; J.H. Crow, Jr., Judge.

W.M Brunson, of Elba, and S.A. Lynne, of Decatur, for appellant.

Newton B. Powell, of Decatur, for appellee.

RICE Judge.

This was a suit by appellee against appellant on a policy of insurance issued by the appellant May 20, 1941, insuring the life of Aubrey Henderson, who is alleged to have died October 15, 1941.

Appellant appeared and filed a plea in abatement of the suit, alleging that the policy in question contained a provision that "no action at law * * * shall be brought or maintained on any claim arising under this policy by the insured or any beneficiary hereunder until after the expiration of ninety (90) days from the completion and filing of proofs of such claim on the forms provided by the Association for such purpose." And appellant further averred in said plea--properly verified (Code 1940, Tit. 7, § 226)--that "the plaintiff, who is the beneficiary under said policy, did not complete and file proofs of the claim sued on and has never to this date filed such proof of said claim on the forms provided by the defendant for such purpose."

Appellee neither questioned, by demurrer, the form nor sufficiency of said plea in abatement, nor filed a general traverse thereof.

Instead he sought to avoid its effect by filing a special replication, which we quote, viz.:

"For answer to the plea in abatement, the Plaintiff says that said proof was waived by the Company, in that the Company sent an agent, who had the right to waive proof of loss in such cases, and who was North Alabama Manager of said Company and who, while acting within the line and scope of his authority as such agent, stated to the plaintiff after the loss, and before the expiration of 90 days from the death of said deceased, that the defendant was not liable for said loss and that the defendant would not pay said claim, and the Plaintiff alleges that by said acts, the defendant waived said proof of loss."

Where the above mode of procedure is adopted, and issue joined, it seems clear that the law is as shown by the quotation we shall make from the Code Commissioner's Annotations immediately following Code 1940 Title 7, § 234, viz "The effect of the interposition of special replication only to a plea, no general replication or general traverse is (being) filed, is to confess the averments of the plea, and to relegate and confine the special...