Knights of Modern Maccabees v. Gillespie

• Decision Date: 14 December 1915
• Docket Number: 8 Div. 322
• Citation: 14 Ala.App. 493,71 So. 67
• Parties: KNIGHTS OF MODERN MACCABEES v. GILLESPIE.
• Court: Alabama Court of Appeals

71 So. 67

14 Ala.App. 493

KNIGHTS OF MODERN MACCABEES v. GILLESPIE.

8 Div. 322

Court of Appeals of Alabama

December 14, 1915

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by William T. Gillespie against the Knights of the Modern Maccabees. Judgment for plaintiff, and defendant appeals. Affirmed.

John A. Lusk & Son, of Guntersville, and A.E Hawkins, of Albertville, for appellant.

McCord & Orr, of Albertville, for appellee.

THOMAS J.

The complaint was upon a policy or certificate of insurance alleged in the complaint to be styled or known as "an accident, disability, and funeral benefit certificate," and alleged in the complaint to have been issued to plaintiff by defendant on August 27, 1912, wherein, as was alleged, it was agreed, among other things, that:

"If by accident the plaintiff should suffer the loss of one leg by severance at or above the ankle joint he should receive the sum of $500" (the amount claimed in the complaint).

The complaint further averred that:

"While said policy was in force and effect, to wit, on or about the 28th day of April, 1913, the plaintiff by accident suffered the loss of a leg at or above the ankle joint, of which the defendant has had notice," etc.

The only ground of the demurrer to the complaint that is insisted upon in brief alleges that the complaint is defective in that it fails to state for what period of time the policy was issued.

We are of opinion that this ground of the demurrer was not well taken, because the absent averment mentioned, though found in the Code form (Code, § 5382, form 12) for a complaint on a life insurance policy, issued for a definite term of years we cannot say, as a matter of law, is applicable to all policies, especially policies or certificates of insurance covering accidents issued by benevolent orders, as defendant purports to be. National Life Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45. Commonly, such a policy or certificate as the latter continues in force, not for a definite period of years, but only so long and as long as the insured remains in good standing as a member of the order by the payment of dues, etc.

The object of the mentioned averment in the Code form cited, which is to the effect that the policy sued on and issued on a date alleged, insured the life of the deceased for a stated number of years, was that it might be made to appear from the complaint whether the time of the death as subsequently alleged was within the alleged term covered by the policy; that is, whether the death was during or within the life of the policy. But where such an averment--such an averment as, that the policy insured the insured for a stated number of years or other period--is not true with respect to the contract of insurance actually sued on, then such an averment would be entirely inappropriate, and, if made, would create a variance between allegation and proof when the policy itself was offered in evidence. U.S. Health, etc., Co. v. Savage, 185 Ala. 232, 64 So. 340.

When, therefore, such an averment is not applicable or appropriate to the contract sued on, then any other averment of fact showing that the death, or accident, as the case may be, happened or occurred within the life of the policy sued on will meet the requirements of good pleading. U.S. Health, etc., Co. v. Veitch, 161 Ala. 630, 50 So. 95; Patterson v. K. of P., 162 Ala. 430, 50 So. 377.

As will be observed from reading the excerpts from the complaint as hereinbefore quoted, it alleged to this end that the accident, relied on as the basis for recovery under the policy, happened "while said policy was in force and effect."

It might be, which we do not decide, that these last words (those quoted), though otherwise sufficient, were objectionable as alleging a conclusion of the pleader ( Penna. Cas. Co. v. Perdue, 164 Ala. 508, 51 So. 352), but no ground of the demurrer seems to properly raise this question, and if it did, it is not insisted upon in brief, and is therefore waived (L. & N.R.R. Co. v. Holland, 173 Ala. 675, 55 So. 1001)--the first ground of demurrer, which we have already considered, being the only one urged in brief, or even there mentioned. The whole of the brief on the point of the demurrer reads:

"The first ground of the demurrer *** should have been sustained. The complaint did not show for what period of time it [the policy] was issued. It should have shown this"

--citing in support U.S. Health, etc., Co. v. Veitch, supra, and U.S. Health, etc., Co. v. Savage, supra, each of which cases we have hereinbefore cited and neither of which, so far as we can see, conflicts with the views we have expressed.

The defendant also complains of the sustaining of demurrers to certain of its pleas. Plea numbered 2, to which a demurrer was sustained, alleged that:

"The policy sued on was issued upon the faith of representations made in a written application and medical examination furnished and signed by defendant; that the application and policy formed one contract, and that in them it was provided: That all the statements and representations made in the application for the policy were material and were true and were warranted by plaintiff to be true. That in and as a part of said application plaintiff was asked this question: 'Are you in any way crippled or deformed?' That plaintiff's answer thereto was a material basis for the issuance of the policy. That plaintiff purposely left said question unanswered, and thereby fraudulently intended to deceive the defendant into the belief that plaintiff was not in any way crippled, when in fact he was, being at the time badly crippled, which fact he fraudulently withheld from this defendant."

The demurrer took the point, among others, which need not be considered, that the plea failed to show that the defendant was in fact deceived, by plaintiff's failure to answer the question, into believing that plaintiff was not crippled or deformed.

Whatever may have been plaintiff's intention to deceive by his failure to answer the question mentioned, if such failure did not in fact deceive the defendant, then such failure furnishes no basis for avoiding the policy. It requires both an intention to deceive and an actual deception to constitute fraud. 14 Am. & Eng.Ency.Law (2d Ed.) 106-108, and Alabama authorities there cited.

As we interpret it, there is nothing in section 4572 of the Code (cited by appellant) that alters or that was intended to alter this rule; nor is there anything that was said in construing said section, in the case of Metropolitan Life Ins. Co. v. Goodman, 10 Ala.App. 451, 65 So. 449, nor in the cases there cited (some of which are cited by appellant), which was intended to do so. National Union v. Sherry, 180 Ala. 627, 61 So. 944; Prov. Society v. Pruett, 141 Ala. 688, Insurance Co. v. Gee,

171 Ala. 435, 55 So. 166; 16 Am. & Eng.Ency.Law (2d Ed.) 921, note 2.

The court consequently did not err in sustaining the demurrer, containing the ground mentioned, to defendant's said plea 2; nor to pleas 3 and 4, which had like defects. Furthermore, we may say with respect to the question in the application, alleged in plea 2 to have been left unanswered, that the law is that where it appears upon the face of the application for insurance that a question is not answered at all, or imperfectly answered, the issuance of a policy without further inquiry will constitute a waiver of the imperfection in the application and will render immaterial the omission to give a full answer. 16 Am. & Eng.Ency.Law (2d Ed.) 937, and authorities there cited; 19 Am. & Eng.Ency.Law (2d Ed.) 71, and cases cited.

Demurrers to pleas 5, 6, A2, A3, and A4 were overruled, but in order to understand the replications to them and points raised with reference thereto it is essential to state their substance. Pleas 5 and 6 set up, separately and severally, that the questions asked plaintiff in the application, to which he is alleged in each instance to have given a false answer, were "Are you in good health?" to which plaintiff replied, as was alleged, "Yes;" and, "Have you ever applied for membership in any society, or in any life insurance company or association, and been rejected or action postponed?" to which plaintiff replied, as was alleged, "No." Each of the pleas, 5 and 6, further alleged that these answers were false, and plea 5 alleged that they were intended to deceive and did deceive defendant, while plea 6 alleged that the misrepresentations increased the risk of loss under the policy, concluding with an averment that the defendant then and there paid into court the sum of $25 as the...