Independent Life Ins. Co. v. Carroll

• Decision Date: 09 October 1930
• Docket Number: 6 Div. 684.
• Citation: 130 So. 402,222 Ala. 34
• Parties: INDEPENDENT LIFE INS. CO. v. CARROLL.
• Court: Alabama Supreme Court

130 So. 402

222 Ala. 34

INDEPENDENT LIFE INS. CO. v. CARROLL.

6 Div. 684.

Supreme Court of Alabama

October 9, 1930

Rehearing Denied Nov. 6, 1930.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action on a policy of life insurance by J. J. Carroll against the Independent Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Huey Welch & Stone, of Bessemer, for appellant.

Lipscomb & Lipscomb, of Bessemer, for appellee.

GARDNER J.

This suit is upon a life insurance policy insuring the life of Josephine Carroll, the wife of plaintiff, the beneficiary named therein. There was judgment for plaintiff, and defendant appeals.

Upon remandment of the cause following reversal of the judgment on former appeal (Independent Life Ins. Co. v Carroll, 219 Ala. 79, 121 So. 88), the pleadings were materially altered and the case presented in a very different aspect. Count 2, upon which alone the cause was tried on plaintiff's part, incorporated, as a part thereof, the policy of insurance which contained an incontestable clause as follows: "This policy shall be incontestable from date of issue except for nonpayment of premium, actual and intended fraud or for engaging in military or naval service in time of war, without permission from the company; if insured died by his or her own hand within one year from date thereof, whether sane or insane, or resulting from a crime or any attempt thereat only one-half of the premium actually paid to the company will be the company's liability hereunder." The pleadings on former appeal did not present this incontestable clause, as there were no replications to defendant's pleas, as it was not otherwise brought forward, a situation similar to that noted in the recent case of Independent Life Ins. Co. v. Butler (Ala. Sup.) 129 So. 466. But upon a retrial of the cause this clause appears in the complaint and, being so pleaded by plaintiff in anticipation of any defense to be interposed we are of the opinion defendant's pleas which ignore entirely this feature of the case were insufficient and properly ruled out on demurrer.

This incontestable clause is valid and binding as held by the authorities generally (37 Corpus Juris, pp. 539-545), and by this court in Mutual Life Ins. Co. v. Lovejoy, 201 Ala. 337, 78 So. 299, L. R. A. 1918D, 860, and United Order of the Golden Cross v. Overton, 203 Ala. 335, 83 So. 59, 60, 13 A. L. R. 672. In the latter case it is referred to as "an assurance against the hazard of litigation."

While the assignments of error are quite numerous and extensively argued by appellant, yet, we think, in view of the incontestable clause above referred to, a consideration of the cause may be brought within a marrow compass.

Defendant interposed numerous pleas setting up a breach of warranty as to the condition of the health of the insured at the time of the issuance of the policy to the effect that she had a named disease that materially increased the risk of loss, but which failed to allege there was any "actual and intended fraud," to use the language of the incontestable clause. The count sustained demurrer to these pleas and a number of the assignments of error relate to this ruling.

Appellant cites sections 8364, 8049, and 8050, Code 1923, and Mut. Life Ins. Co. v. Allen, 174 Ala. 511, 56 So. 568; Sov. Camp, W. O. W., v. Hutchinson, 214 Ala. 540, 108 So. 520; Ind. Life Ins. Co. v. Seale, 219 Ala. 197, 121 So. 714; Brotherhood Rwy. & S. S. Clerks, etc., v. Riggins, 214 Ala. 79, 107 So. 44; National Life Ins. Co. v. Winbush, 215 Ala. 349, 110 So. 571; Ind. Life Ins. Co. v. Carroll, 219 Ala. 79, 121 So. 88; Miller v. Metropolitan Life Ins. Co., 214 Ala. 5, 106 So. 335; and Beason v. Sov. Camp, W. O. W., 208 Ala. 276, 94 So. 123, among other authorities. But neither these authorities nor the cited statutes deal with an incontestable clause as here presented and, therefore, are inapplicable to the instant case. The ruling of the court as to these pleas gave effect to the language of the incontestable clause and was free from error.

Numerous assignments of error relate to the refusal of quite a number of requested charges which ignore the incontestable clause, and their refusal was justified for like reasons as for the rulings on the pleas, and need no separate treatment here. Some of these requested charges (assignments of error 93, 94, and 104) rest upon a presumption of an intent to deceive from certain known facts, and the case of Miller v. Metropolitan Life Ins. Co., 214 Ala. 5, 106 So. 335, is cited in support thereof. But this authority was not considering language of an incontestable clause as here presented "actual and intended fraud," which we think clearly excludes fraud arising by virtue of any presumption of law. Some other charges were properly refused as indicating too much stress upon the matter of disease without any reference to the question of "actual and intended fraud," and thus possessing a misleading tendency.

That there was no reversible error in that portion of the oral charge to which exception was reserved follows from what has already been said and needs no further comment.

Appellant seeks to avoid the effect of the language of the incontestable clause by reference to another clause in the policy to the effect that "no obligation is assumed by the company unless on the date and delivery hereof the insured is alive and in sound health," etc. But it has been frequently held...