Liberty Nat. Life Ins. Co. v. Stringfellow

• Citation: 92 So.2d 924,38 Ala.App. 594
• Decision Date: 16 October 1956
• Docket Number: 6 Div. 267
• Parties: LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Buford STRINGFELLOW.
• Court: Alabama Court of Appeals

Page 924

92 So.2d 924

38 Ala.App. 594

LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Buford STRINGFELLOW.

6 Div. 267.

Court of Appeals of Alabama.

Oct. 16, 1956.

Rehearing Denied Nov. 13, 1956.

Lange, Simpson, Robinson & Somerville, Birmingham, and Huey, Stone & Patton, Bessemer, for appellant.

Lipscomb, Brobston, Jones & Brobston, Bessemer, for appellee.

HARWOOD, Presiding Judge.

This cause was submitted to the jury upon count 2 of the complaint which was as follows:

'Plaintiff claims of the defendant, Liberty National Life Insurance Company, a Corporation, the sum of Fifty Thousand Dollars ($50,000.00) damages, for that on, to-wit: prior to the 1st day of January, 1953, the defendant entered into a contract of burial insurance with plaintiff's wife, Sadie Stringfellow, whereby the defendant for a valuable consideration, promised that upon the death of plaintiff's wife, Sadie Stringfellow, said defendant would furnish plaintiff, as beneficiary of said policy, a 12-guage copper steel vault for the burial of said deceased wife; and on, to-wit: the first day of January, 1953, the said Sadie Stringfellow, plaintiff's wife, died; and on, to-wit: the 3rd day of January, 1953, the defendant had the custody of the remains of his deceased wife, for burial; and on said date said contract of burial insurance was in full force and effect, and although on said date all the terms and conditions of said contract had been performed by the insured, plaintiff's deceased wife, the defendant on said date breached the said contract on its part in that the defendant failed and refused to provide said copper steel vault, and on the contrary provided only a concrete vault for the burial of plaintiff's deceased wife, and plaintiff not being able to obtain the said copper steel vault as aforesaid was forced to permit the body of his said deceased wife to be placed in the said concrete vault, in which vault the said body was buried against the protestations of plaintiff, and as a proximate consequence of defendant's said breach of said contract of burial insurance, the plaintiff suffered great humiliation, chagrin, and mental anguish and suffering, and his feelings were shocked and outraged, and plaintiff was made sick; wherefore plaintiff sues as beneficiary of said policy, and plaintiff claims damages as aforesaid.'

Demurrer to the complaint being overruled, issue was joined on defendant's plea, in short, by consent, etc.

A verdict in favor of the plaintiff was returned by the jury, damages being assessed at $1,000.

Judgment was entered pursuant to the verdict, and defendant's motion for a new trial being overruled, an appeal was perfected to this court.

The policy sued on was a vault policy, and among other things, provided that the defendant, (appellant):

'Will upon receipt of satisfactory proof of the death of the insured and the surrender of this policy provide, subject to the terms and conditions of this policy, a steel vault for the insured of the retail value shown in the schedule, or a concrete vault as stipulated herein.'

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'3 A. The Company agrees to furnish for the burial of the insured a 12 gauge copper steel vault of the retail value of $100.00. At the option of the beneficiary named herein a concrete vault made of No. 1 cement will be furnished in lieu of said copper steel vault.'

The plaintiff, and Mrs. Jim Allene Snow, Mrs. Princella Stockes, and Mrs. Oma Jones were witnesses for the plaintiff.

The appellee, as a witness in his own behalf, testified to the effect that Sadie Stringfellow, his deceased wife, was, at the time of her death, the owner of a burial policy and a burial vault policy issued by the appellant company.

On the day of her death the appellee, accompanied by the three ladies above mentioned went to the Brown Service Funeral Home in Bessember to arrange for the burial of Mrs. Stringfellow.

It was agreed that the funeral home was authorized to act for the appellant in such matters.

Mr. Ivy Gwin, an employee of the funeral home, accepted the policies and assisted in the selection of a casket.

As to the burial vault, the appellee testified that he was not shown a steel vault, but only two miniature vaults and was told that one was a sample concrete vault, and the other a sample steel vault. Upon requesting a steel vault the appellee was informed by Mr. Gwin that he would have to take the concrete vault as called for in the policy, and that a steel vault would be sixty dollars extra. Appellee was unable to provide a steel vault under these conditions, and his wife was buried in a concrete vault.

The three ladies who accompanied appellee to the funeral home testified to substantially the same facts as did appellee.

For the appellant Mr. Gwin testified that upon appellee's visit to the funeral home, accompanied by the ladies, they were shown two miniature concrete vaults, one of better quality than the other, and also a regular steel vault.

The appellee selected the better quality concrete vault. This higher quality concrete vault was not called for by the policy, and he informed the appellee that a vault of this quality would cost sixty dollars more, and that the policy called for the cheaper vault. The...