Liberty Nat. Life Ins. Co. v. Weldon

Decision Date14 November 1957
Citation61 A.L.R.2d 1346,267 Ala. 171,100 So.2d 696
Parties, 61 A.L.R.2d 1346 LIBERTY NATIONAL LIFE INSURANCE COMPANY et al. v. Gaston WELDON. 5 Dov. 605.
CourtAlabama Supreme Court

Spain, Gillon & Young, Ralph B. Tate and Frank M. Young, Birmingham, and Reneau & Reneau, Wetumpka, for Liberty Nat. Life. Ins. Co.

Walter M. Robinson, Jr., Nashville, Tenn., Jas. A. Simpson, Chas. B. Robinson and Lange, Simpson, Robinson & Somerville, Birmingham, and Robt. S. Milner and Holley, Milner & Holley, Wetumpka, for National Life & Acc. Ins. Co.

T. B. Hill, Jr., Montgomery, W. H. Sadler, Jr., Birmingham, and Edwin Sanford Wetumpka, for Southern Life & Health Ins. Co.

Godbold & Hobbs and Truman Hobbs, Montgomery, for appellee.

LAWSON, Justice.

This is a suit by Gaston Weldon, who sues as the father of Shirley Dianne Weldon, deceased, his minor daughter, under § 119, Title 7, Code 1940, the so-called homicide statute, against Liberty National Life Insurance Company, a corporation; National Life & Accident Insurance Company, a corporation; and Southern Life & Health Insurance Company, a corporation.

We will sometimes hereafter refer to Gaston Weldon as the plaintiff, to his deceased child as Shirley, and to the defendant insurance companies as Liberty National, National Life and Southern Life.

Shirley died on May 1, 1952, when she was approximately two and one-half years of age. Prior to her death each of the defendant insurance companies had issued a policy wherein Shirley's life was insured. The policy of Liberty National in the amount of $500 was issued on December 1, 1951. National Life's policy in the amount of $1,000 was issued on or about April 23, 1952. The policy of Southern Life in the amount of $5,000 was issued in the latter part of March, 1952. Each of those policies was issued on an application of Mrs. Earle Dennison, who was an aunt-in-law of Shirley, that is, she was the widow of a brother of Shirley's mother. Each of the policies provided that the death benefits be paid to Mrs. Dennison. The Southern Life policy did contain a provision to the effect that Shirley's mother was a contingent beneficiary. The Liberty National policy was delivered to Mrs. Dennison on or about the day of its issue. The policy issued by National Life had not been delivered to Mrs. Dennison at the time of Shirley's death. At that time it was in the possession of the local agent to whom it had been sent by the home office in Nashville, Tennessee. The policy of Southern Life was delivered to Mrs. Dennison during the latter part of March, 1952.

The theory on which plaintiff seeks to recover damages from the defendants is that Mrs. Dennison had no insurable interest in Shirley's life and that the defendants knew or should have known that fact; and, that by reason of the wrongful and negligent issuance of the 'illegal' policies of insurance Mrs. Dennison murdered Shirley with the hope of collecting the insurance proceeds.

The case was submitted to the jury on plaintiff's amended complaint which consisted of six counts, in each of which damages were claimed in the amount of $100,000. Counts 1 and 2 charge the defendants with wrongful acts in issuing policies of insurance in which the applicant-beneficiary had no insurable interest in the life of the insured, with Count 1 charging knowledge of the want of insurable interest on the part of the defendants, and Count 2 alleging knowledge or that by the exercise of reasonable diligence the defendants should have known that there was a lack of insurable interest. Counts 3 to 6 inclusive are grounded on negligent acts on the part of the defendants, with Counts 3 and 6 alleging that the acts of the defendants placed the insured child in a zone of danger, with unreasonable risk of harm to her and that the defendants in issuing the alleged illegal contracts of insurance knew, or by the exercise of reasonable diligence should have known, that the beneficiary, Mrs. Dennison, had no insurable interest in the life of the insured. Count 4 alleges a negligent act. Count 5 alleges a negligent act and pleads facts going to show a lack of insurable interest in Mrs. Dennison, the beneficiary. Each of the counts contains an averment to the effect that the wrongful or negligent acts of the defendant insurance companies concurred or united in proximately contributing to or causing the death of plaintiff's minor child.

To the complaint as last amended and to each of its counts the defendants separately demurred. The demurrers were overruled. The defendants' motions for change of venue were denied. The defendants separately plead the general issue in short by consent in the usual form. There were verdict and judgment for the plaintiff in the amount of $75,000. The motions for new trial filed by each of the defendant insurance companies having been overruled, each of them has appealed to this court.

We have given to the thousand-page record in this case and to the extensive briefs of counsel for the parties the laborious examination which a case of first impression deserves. We proceed to state, as briefly as we can, the conclusions we have attained in regard to the several assignments of error which are insisted upon in the brief filed here on behalf of the appellants. We will consider first those assignments of error which are relied upon by all of the appellants, the defendants below.

Assignment of Error No. 1 of each appellant is: '1. The Court erred in overruling this defendant's demurrer to the complaint as last amended.' This assignment is not too general. Vinson v. Vinson, 256 Ala. 259, 54 So.2d 509. It is not necessary to make a separate assignment of error as to each ground of demurrer relied upon. Brewer v. Brewer, 259 Ala. 149, 66 So.2d 450, and cases there cited. But under such assignments we generally treat only those grounds of the demurrer insisted upon in brief of appellant as having been well taken. Groover v. Darden, 259 Ala. 607, 68 So.2d 28, and cases cited; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So.2d 164. No ground of any of the demurrers is referred to by number in the brief of appellants nor is any ground quoted or paraphrased. The argument made by appellants in support of their Assignment of Error No. 1 indicates that they contend that ground 33 of the demurrer filed by each of them was well taken and hence the trial court erred in not sustaining their demurrers. A demurrer, of course, is a single entity and if any ground is good the demurrer should be sustained. Opelika Montgomery Fair Co. v. Wright, 255 Ala. 499, 52 So.2d 412. Ground 33 of the demurrer filed separately by each defendant reads: 'For that it affirmatively appears that said policies of insurance on the life of the said Shirley Dianne Weldon were void and worthless and hence could in fact constitute no inducement to kill said child.'

Each of the counts in the complaint as last amended contained language substantially as follows: '* * * that said policies of insurance issued by the defendant insurance companies were illegal contracts for the reason that they tended to induce the beneficiary to bring about the death of the insured, the said Shirley Dianne Weldon, and said contracts did in fact so induce said beneficiary who thereafter in the hope of collecting the fruits of such wrongful contracts killed said minor child on, to-wit,' etc.

If we understand the argument of appellants, it is that Mrs. Dennison is presumed to have known the law, that is, that the contracts of insurance were illegal and void, and hence those contracts could not have served as an inducement to kill.

In support of their argument appellants rely upon Gooch v. State, 249 Ala. 477, 31 So.2d 776, 174 A.L.R. 1297, a criminal case concerned with the elements necessary to constitute the crime of forgery wherein we held, in part: 'So, a check given on Sunday, unless for one of the purposes permitted by law as set forth in the Sunday statute [§ 21, Title 9, Code 1940], would be void and not the subject of forgery.' 249 Ala. 479, 31 So.2d 779.

We do not think the holding in the Gooch Case is in any way controlling here. We cannot lift out of context the criminal law rationale of that case and apply it to this case, where the averments of the complaint are clearly to the effect that Mrs. Dennison killed because she thought the policies were valid and that she would be paid the death benefits. In Dennison v. State, 259 Ala. 424, 66 So.2d 552, 554, we affirmed the conviction of Mrs. Dennison of murder in the first degree. In the opinion there written, after referring to two of the insurance policies here involved we said: 'If, therefore, it were necessary to search for a motive we would find it here.' See Black v. State, 137 Tex.Cr.R. 173, 128 S.W.2d 406.

The appellants, defendants below, in support of their argument that ground 33 of their demurrers was well taken, cite and quote from the case of Peckham v. Grindlay, 1885, 17 Abb.N.C., N.Y., 18 wherein it was held that a complaint by a brother to cancel an insurance policy wherein his sister was named as beneficiary was demurrable. The demurrer admitted the averments of the complaint to the effect that the sister had no insurable interest in her brother's life. But the New York court held that the complaint did not state a case for cancellation for two reasons. First, the plaintiff was estopped. The policy had been issued and accepted with his consent and premiums paid thereon for over twenty-three years. Second, the complaint contained no averments to the effect that plaintiff was in danger at the hands of his sister. Plaintiff's counsel took the position that the policy was void. The New York court observed that if void there was no occasion for a judgment directing the surrender and cancellation of the policy.

The complaint in the instant case shows no basis for the application of the doctrine of estoppel but it does show that the insured's life...

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