Jefferson Life & Cas. Co. v. Williams
| Citation | 76 So.2d 185,37 Ala.App. 718 |
| Decision Date | 30 November 1954 |
| Docket Number | 1 Div. 693 |
| Parties | JEFFERSON LIFE & CASUALTY CO. v. Joseph W. WILLIAMS. |
| Court | Alabama Court of Appeals |
Scott & Porter, Chatom, for appellant.
Wallace P. Pruitt, Chatom, for appellee.
Suit Below was upon a 'Special Family Group Hospital Policy.'
The jury returned a verdict in favor of the plaintiff and judgment was entered accordingly. Defendant's motion for a new trial being overruled appeal was perfected to this court.
The complaint was in one count, and the defendant's demurrer thereto being overruled the defendant filed five pleas. Pleas 1, 2, and 3 were general pleas of denial of liability.
Pleas 4 and 5 were special pleas setting up certain provisions of the policy. For the purposes of this review we need only advert to plea 5, which was as follows:
5. For further answer to the Complaint the Defendant says that in the policy of insurance sued on this cause it is agreed that:
"This insurance shall extend to and cover hospitalization and any necessary surgery specified in surgical benefits in part two hereof due to heart disease, cancer, ulcer, diabetes, rectal diseases, hernia, but only if such condition shall originate after this policy has been maintained in force for ten months from date of issue.'
'And the Defendant shows unto this Honorable Court that Plaintiff seeks to recover in this cause for hospitalization due to an ulcer, or ulcers, and that said policy had not been maintained in force for a period of ten months from the date of issue when such ulcer, originated as agreed and required by the above quoted terms of the policy on which this suit is based, and hence the plaintiff cannot recover in this suit.'
No further pleadings of any nature were filed, though it is apparent from the evidence introduced by the appellee (plaintiff below) that the case was tried on the theory that a waiver by estoppel resulting from statements by the appellant's agent nullified the effect of the provision of the policy set forth in plea 5.
Parties in a suit at law may be acquiescence or the introduction of evidence waive formal pleading, and form their own issues on the evidence introduced. National Life & Accident Ins. Co. v. Curtin, 33 Ala.App. 50, 29 So.2d 577, and cases therein cited.
In the trial below the evidence presented by the plaintiff consisted of his own testimony, several exhibits in the form of receipted bills for medical expenses, the insurance policy sued upon, and the deposition of Dr. J. R. Moore of Mobile, Alabama.
The defendant presented no evidence.
The appellee testified that he 'bought' the policy sued on from an agent of defendant named Fuller. That upon this occasion Fuller told him that the policy would be in effect in about thirty days, that is when he received it.
In this connection the record also shows the following:
'Judge Pelham: Overrule the objection.
'Mr. Porter: We except.
The plaintiff then introduced the policy, which is dated 13 April 1950.
Under the heading 'Exceptions and Limitations' appears the provision set forth in plea 5.
The plaintiff further testified that on 1 January 1951 he became ill. On 3 January 1951 he consulted Dr. Childs, in Chatom. This physician gave him some medicine and told him to report back in three days. On the second visit to Dr. Childs he was advised to go to Mobile for X-rays.
Appellant went to Mobile and consulted Dr. J. Richard Moore on or about the 13th of January 1951. This physician made a diagnosis of ulcer of the stomach.
Dr. Moore testified by deposition that he first saw the plaintiff in his...
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