Liberty Nat. Life Ins. Co. v. Patterson

• Decision Date: 15 April 1965
• Docket Number: 8 Div. 137
• Parties: LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Opal L. PATTERSON.
• Court: Alabama Supreme Court

Page 737

175 So.2d 737

278 Ala. 43

LIBERTY NATIONAL LIFE INSURANCE COMPANY v. Opal L. PATTERSON.

8 Div. 137.

Supreme Court of Alabama.

April 15, 1965.

Rehearing Denied May 27, 1965.

Key & Williams and Kennedy Williams, Russellville, Spain, Gillon & Young and Foster Etheredge, Birmingham, for appellant.

Howell T. Heflin and Chas. D. Rosser, Tuscumbia, for appellee.

MERRILL, Justice.

Appeal from a judgment for plaintiff in the amount of $10,785.24, the face value of a life insurance policy plus interest. A motion for a new trial was overruled and this appeal followed. Plaintiff-appellee is the wife of the deceased insured.

Eight of the argued assignments of error are concerned with the refusal of the court to give the general affirmative charge requested by appellant in eight different forms. All of these are related assignments of error and the same answer suffices for all of them.

The form for which the principal argument was made was: 'I charge you that if you believe the evidence in this case you must return a verdict for the defendant.'

Appellee argues that this charge is defective and is not in proper form because it should say that the jury should not find for the plaintiff, or should not find against the defendant, citing Goldstein v. Leake, 138 Ala. 573, 36 So. 458, and Boshell v. Cunningham, 200 Ala. 579, 76 So.2d 937. But the rule of those cases applies only where there is more than one count in the complaint, and has no application where the complaint consists of only one count. Turner v. Blanton, Ala., 173 So.2d 80 (4 Div. 207); Railway Express Agency v. Burns, 255 Ala. 557, 52 So.2d 177.

Appellant's main contention is that the application for insurance, which became a part of the policy, contained a provision that the policy would not become effective until it was manually delivered to the insured during his lifetime, and having proved its pleas that it was not so delivered, it was entitled to the affirmative charge.

The complaint in the instant case consisted of one count in Code Form. Appellant filed some seventeen pleas to which appellee filed thirty-six replications. Demurrers to the replications were sustained as to replications '2 through 35.' In replication 1, appellee joined issue on each of defendant's pleas, and replication 36, while admitting pleas 16 and 17 that the policy was not manually delivered to the insured during his lifetime, alleged that the insurance was nevertheless in effect under the policy because the policy had been issued by defendant and delivered to its agent for delivery to the insured, and that the agent had collected the first premium and had issued binding insurance on the insured.

On August 2, 1961, the insured, Milton C. Patterson, of Red Bay, made written application for a $10,000 policy to appellant's agent Hughes. He paid the premium and was given a receipt. The application provided that no insurance would take effect unless and until the policy had been manually delivered to and accepted by Patterson during his lifetime and good health. No medical examination was required. The policy was issued by the home office with an effective date of September 13 and transmitted to the Florence district office. Later it was taken to the Russellville office, out of which agent Hughes worked. Patterson died suddenly of a coronary occlusion and coronary thrombosis on September 17, 1961, before the policy had been delivered to him.

Both appellant and appellee rely on the declarations in section (2) of the application, which read:

'That no insurance shall take effect unless and until the policy has been manually delivered to and accepted by the Owner and the first premium paid during the lifetime and good health of the Proposed Insured (except as provided in the receipt bearing the same number as this application if the full first premium has been paid and acknowledged and such receipt issued).'

Section 1 of the Receipt provided:

'Insurance under the terms of the policy applied for and subject to the limits specified below shall take effect as of: (a) the last date of any medical examination or tests required under the rules and practices of the Company, or (b) the date of this payment, whichever shall be later; provided that on such applicable date the Proposed Insured is in good health and in the opinion of the Company's authorized officers at its Home Office is insurable and acceptable under the rules and practices of the Company as a standard risk for the policy, in the amount and on the plan exactly as applied for.'

The receipt did show full payment of the premium, and bore the same number as the application.

We have held that a policy that had a provision that it would not be effective until the first premium was paid and the policy delivered to the applicant during her lifetime and in good health was not enforceable when the policy was not delivered during applicant's lifetime, Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175; and that there can be no binding delivery of a policy after the death of the insured, Metropolitan Life Ins. Co. v. James, 228 Ala. 383, 153 So. 759.

But there is more to the documents issued by appellant than a requirement of manual delivery. That requirement was subject to the receipt which provided that the 'Insurance * * * shall take effect as of: * * * the date of this payment * * * provided that on such applicable date the Proposed Insured is in good health and in the opinion of the Company's authorized officers at its Home Office is insurable and acceptable under the rules and practices of the Company * * *.'

Here, the full premium was paid when the application for insurance was made, and the receipt signed by agent Hughes bore the same number as the application and the home office issued the policy in question and sent it to the district office to be delivered. All of these events occurred prior to the death of the insured.

Appellant raises the point of the lack of authority of agent Hughes to bind the company prior to the manual delivery of the policy to the insured, but that point has been decided in National Life & Accident Ins. Co. v. Claytor, 254 Ala. 413, 48 So.2d 180, where it was held that even though there was no evidence of the authority of the soliciting agent to issue a receipt and binder, when the home office accepted the application and issued the policy, it ratified and approved the binder as a temporary contract. So here, when the policy was issued, the actions of agent Hughes had been ratified.

The application in the Claytor case contained a provision that 'the proposed contract shall not be effective until the policy has been issued and the first premium actually paid and accepted by the company and the policy has been delivered to and accepted by me in my lifetime, and while in good health, * * *.' There, the evidence was that the insured had cancer of the lung when the policy was delivered and that he died shortly thereafter, but there was no indication of such affection when the application was made...