Fidelity Mut. Life Ins. Co. v. Batson

• Decision Date: 28 February 1903
• Citation: 34 So. 166,136 Ala. 330
• Parties: FIDELITY MUT. LIFE INS. CO. v. BATSON. [a1]
• Court: Alabama Supreme Court

34 So. 166

136 Ala. 330

FIDELITY MUT. LIFE INS. CO. v. BATSON. ^[a1]

Supreme Court of Alabama

February 28, 1903

Appeal from City Court of Bessemer; B. C. Jones, Judge.

Action by Mary Frances Batson against the Fidelity Mutual Life Insurance Company to recover on the policy of life insurance issued by defendant on the life of plaintiff's intestate. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The defendant pleaded the general issue and several special pleas. In the fourth special plea the defendant set up that the contract of insurance sued on was made in consideration of a written application of the insured, which was made a part of the policy; that, as a part of the written application which formed the basis of the contract sued on it was agreed that the policy issued thereon should not become binding upon the company until the first payment due thereon should have been actually received by the company, or its authorized agent, during the lifetime and good health of the insured; that after the receipt of the application of the insured the defendant issued the policy sued on, and sent it with its regular receipt for delivery and collection of the initial premium, to C. B. Jennings, its agent at Birmingham Ala.; that said Jennings delivered said policy and receipt to one of his agents or subagents, one L. E. Williams, for delivery to Dennis W. Batson, and for the collection of the initial premium; that on October 24, 1900, the said L. E Williams delivered said policy to said Dennis W. Batson; that the said Batson did not actually pay the initial premium, and has never paid any premium, on said policy to the defendant or its duly authorized agent, but that, at the time of the delivery of the policy to Batson, he, in exchange therefor executed his promissory note to said L. E. Williams for the amount of the initial premium, said note being made payable 30 days after date; that upon the execution of this note Williams delivered to Batson the said policy and the receipt. And it was further averred in said plea that the said D. W. Batson "wholly failed and neglected to pay said note at maturity, and the same has never been paid, and he wholly failed and neglected to pay the initial premium, or any part thereof. Wherefore defendant says that said policy is absolutely void and of no effect, and that the defendant ought not to pay the same."

To the special plea of the defendant the plaintiff filed several replications. To the fourth special plea the plaintiff filed, among others, the following replication: "(3) Plaintiff says, in answer to fourth plea, that said note set up in said plea is not the property of the defendant, has never been the property of the defendant, and was not given to the defendant in payment of said first premium, in violation of any instructions, rule, or contract of said company; but said first payment was made to the authorized agent of said company, and was made during the lifetime and good health of said Batson."

To the plaintiff's third replication to the defendant's fourth plea, the defendant demurred upon the following grounds: "(1) The replication tenders an immaterial issue. (2) It constitutes no sufficient answer to the plea. (3) It...