Jones v. Liberty Nat. Life Ins. Co.
| Decision Date | 05 October 1949 |
| Docket Number | 3 Div. 906 |
| Citation | 35 Ala.App. 52,47 So.2d 222 |
| Parties | JONES v. LIBERTY NAT. LIFE INS. CO. |
| Court | Alabama Court of Appeals |
Edwin C. Page, Jr., of Evergreen, for appellant.
B. E. Jones, of Evergreen, for appellee.
This cause is before us on pleadings only, the appellant, who was the plaintiff below having taken a non suit with leave to review in this court the ruling of the lower court sustaining the appellee's (defendant below) demurrers to certain replications filed by the plaintiff.
The plaintiff below, as beneficiary under a policy of life insurance issued on the life of Flossie Ellen Jones, brought suit on said policy. The complaint was in code form.
The defendant filed eight pleas, only six of which are now before the court, demurrers having been sustained to two of the pleas.
Plea 1 was the general issue.
Pleas Nos. 2, 3, and 4 all assert that at the time of the delivery of the policy sued on the insured was afflicted with cancer, and that this fact breached the following warranty in the policy: 'This policy shall take effect on its date of issue provided the insured is then alive and in good health, but not otherwise.'
Pleas 5 and 6 assert that a false answer of 'no,' made with intent to deceive, was given to a question in the application as to whether insured had ever had cancer, and that such false representation increased the risk of loss under said policy.
To these pleas the plaintiff filed nine replications.
Replications 2 to 7, inclusive, were filed separately and severally to all pleas, replications 8 and 9 only to pleas 2, 3, and 4.
These replications assert two matters in general.
Replications 2 and 3 set up in various language that at the time the application for said policy was executed W. W. Hagood, the agent of the defendant, acting within the line and scope of his authority, was informed that the insured was afflicted with cancer, and gave true answers to all questions asked and contained in the application; that neither the plaintiff nor the insured read or signed the application and were not informed of the answers placed therein by defendant's agent; and that the policy was subsequently delivered and the premiums paid thereon until the death of the insured.
Replications 7 and 8 are substantially the same as 2 and 3, except that they additionally allege that the policy was issued without a medical examination, and the application was not made a part of the policy; and that the application contains a statement showing that defendant's agent was entirely responsible for the selection of the risk.
The appellant, defendant below, demurred to replications 2 and 3 on the grounds, shortly summarized, that defendant's agent had no authority to waive, or to alter, the terms of the policy, and that his authority was limited to soliciting insurance, delivering policies, and collecting premiums.
Demurrer was filed to replication 7 on the same grounds as assigned to replications 2 and 3, and on the additional ground that this replication showed that defendant's agent was committing a fraudulent act in his own interest which would not be imputed to his principal, the defendant.
Demurrer to replication 8 contained the same grounds as the demurrer filed to replication 7, and the additional ground that it is not shown by replication 8 that any officer or agent with authority to issue said policy sued on was informed or had notice that the insured was suffering from cancer, and it fails to show that any such officer possessing authority to alter the terms of the policy ever had notice that the insured was suffering from cancer.
Replications 5 and 6 allege that while the life insurance policy was in force and effect, the defendant, through an agent, took another application from defendant for a policy of burial insurance, and that the application for this burial policy showed on its face that the insured was an impaired risk for life insurance, and that such application for burial insurance was received in the home office of the defendant and a burial policy issued thereon, and the defendant for more than twelve weeks after the issuance of the burial policy continued to send agents to the plaintiff and collect premiums on the life insurance policy which is the basis of this litigation.
Replication 6 is substantially the same as 5 except that it alleges that the application for said burial policy on its face informed defendant of facts as to the health of Flossie Ellen Jones which would increase the risk of loss under a policy insuring her life, and which facts would tend to indicate that insured was not in sound health on the date of the issuance of the life insurance policy now in suit.
Replication 9 contains the same averments as replications 5 and 6, with the additional averment that the application for the burial policy showed that the insured, Flossie Ellen Jones had an age of 90 years at her next birthday, that none of the questions as to insured's physical condition were answered, but that endorsed across the agent's statement on said application for the burial policy were the words 'Single premium' endorsed by defendant's agent P. L. Pace, showing on its face that the death of the insured was imminent, either because of insured's advanced age or because of her physical condition, and that defendant continued to collect premiums on the policy in suit for more than twelve weeks after such notice as contained in the application for the burial policy.
Defendant's demurrer to replication 9 assigned the same grounds as assigned in the demurrers to replications 5 and 6, and the additional ground the application for the burial policy did not show on its face that it was seeking insurance on the same person as the insured in the life policy sued on.
It might be noted here, in order to keep the record of the pleadings straight, that plaintiff's replication 4 avers that the application for the burial policy shows on its face that the insured was suffering from cancer. The lower court overruled the demurrer to this replication. It therefore remains in the case, but has no bearing other than reflecting the possible conclusion of the lower court that if the application for the burial policy actually contained such information, it may have amounted to notice to the company. After overruling of the demurrer the defendant filed an answer to said replication, setting up, among other things, that the policy sued on contained the following provision:
The facts thus developed by the pleadings are to the effect that the plaintiff applied to the defendant for life insurance. In the application therefor, filled out by defendant's agent it was stated that insured was not suffering from cancer. The insured was afflicted with cancer at the time, and was so afflicted at the date of the delivery of the policy. Plaintiff's pleadings assert the defendant's agent was informed of this fact, and falsely stated it in the application which was not read over or signed by the insured, or by the plaintiff. The policy contained the provision it was to take effect on the date of its issue, provided the insured was on that date in sound health. It further provided that the policy constituted the entire agreement between the parties, and that no agent had the power to alter the terms thereof, any change in such terms being made by endorsement signed by the President or Secretary.
The pleadings further show that after issuance of the above policy of life insurance the insured obtained, through a different agent of defendant, a burial policy. The application on which the burial policy was issued had written across the 'Agent's Statement' the words 'Single premium.' After issuance of the burial policy the defendant, through its agent collected premiums on the life policy for some twelve weeks.
The appellant contends that the lower court erred in sustaining demurrers to his replications on two theories.
First: That under the allegations of plaintiff's replications 2, 3, 7, and 8, notice to the agent, while engaged in the business of his principal, the defendant, that the insured was suffering from cancer was imputed to the...
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