Eminent Household of Columbian Woodmen v. Blackerby
| Decision Date | 14 February 1918 |
| Docket Number | 4 Div. 741 |
| Citation | 201 Ala. 443,78 So. 821 |
| Parties | EMINENT HOUSEHOLD OF COLUMBIAN WOODMEN v. BLACKERBY. |
| Court | Alabama Supreme Court |
On Application for Rehearing, May 9, 1918
Appeal from Circuit Court, Covington County; A.B. Foster, Judge.
Action by Ada Blackerby, formerly Ada Rambo, against the Eminent Household of Columbian Woodmen. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Powell Albritton & Albritton, of Andalusia, for appellant.
A.R Powell, of Andalusia, for appellee.
The action is on an instrument sometimes called an insurance policy, a certificate of insurance; it being here denominated "beneficiary covenant." The instrument sued upon is set out in haec verba as a part of count 1 of the complaint. On its face it purports to insure the assured against certain accidents; in this respect it partakes of the nature of an accident insurance policy. It undertakes furthermore, in the event of the death of the assured while the covenants are in force, that appellant corporation will pay to the beneficiary an amount named; in this aspect it partakes of the nature of a life insurance policy. The assured having died, the action is by the beneficiary to recover the amount agreed to be paid under the life insurance phase of the covenant or policy.
The first count is on the instrument which is set out in full. The second count follows the Code form as for an action on a policy of life insurance. Code, vol. 2, form 12, p. 1196. The third count declares on the instrument of insurance, but does not set it out in full; it sets up only the substance thereof, and alleges an appropriate breach.
The defendant demurred to each count of the complaint, and, the demurrers being overruled, it interposed the general issue and 15 or 20 special pleas setting up breaches of the contract of insurance by the insured, alleged to have forfeited the right to recover under the insurance policy. To these special pleas the plaintiff interposed demurrers, which were sustained. Thereupon a trial was had on the general issue, resulting in a verdict and judgment for plaintiff. From that judgment defendant prosecutes this appeal.
It is first insisted that the court erred in overruling demurrer to counts 1 and 3 of the complaint, because of the failure of either count to allege that the insured died during the life of the policy, or that the policy or contract was in force at the time of his death. Neither of these counts was subject to these grounds of demurrer--the only ones insisted upon in argument. Each count does sufficiently allege that the contract or policy of insurance was in force when the insured, the "guest," as he is called therein, died.
It is next insisted that the trial court erred in sustaining plaintiff's demurrer to each of defendant's special pleas. Under the recent ruling of this court in the case of Locomotive Engineers', etc., Ins. Ass'n v. Jennie B. Hughes, 77 So. 352, these pleas as amended were not subject to demurrer on the ground that they failed to allege that the provisions of forfeiture set up in the pleas were plainly expressed in the covenant or policy sued upon, or that the application containing the statements or warranties alleged to have been breached by the insured was attached to or made a part of the contract of insurance or policy sued upon. This court held (and correctly) in the Hughes Case supra, that such allegations are not necessary in actions on contracts of insurance like the one here sued upon; and in so holding the court expressly overruled the cases of National Union v. Sherry, 180 Ala. 627, 61 So. 944, and Brotherhood, etc., v. Milner, 193 Ala. 68, 69 So. 10, which cases the trial court evidently followed in its rulings on these pleas. ...
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