Liberty Nat. Life Ins. Co. v. Stringfellow, 6 Div. 267

• Court: Alabama Court of Appeals
• Writing for the Court: HARWOOD; The complaint fails to allege that the appellee was a party to the contract directly or through an agent, and construing the count most strongly against the pleader, it also fails to allege that the contract was for his sole benefit, but ave
• Citation: 92 So.2d 924,38 Ala.App. 594
• Parties: LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Buford STRINGFELLOW.
• Docket Number: 6 Div. 267
• Decision Date: 16 October 1956

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.

[38 Ala.App. 595] Lange, Simpson, Robinson & Somerville, Birmingham, and Huey, Stone & Patton, Bessemer, for appellant.

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

[38 Ala.App. 596] 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,

Page 925

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...