Life & Cas. Ins. Co. of Tennessee v. Powell, 2 Div. 102

• Decision Date: 14 April 1937
• Docket Number: 2 Div. 102,105.
• Citation: 180 So. 559,235 Ala. 537
• Parties: LIFE & CASUALTY INS. CO. OF TENNESSEE v. POWELL (TWO CASES.
• Court: Alabama Supreme Court

180 So. 559

235 Ala. 537

LIFE & CASUALTY INS. CO. OF TENNESSEE v. POWELL (TWO CASES.

2 Div. 102, 105.

Supreme Court of Alabama

April 14, 1937

Appeal from Circuit Court, Dallas County; John Miller, Judge.

Action by Elizabeth C. Powell against the Life & Casualty Insurance Company of Tennessee, to recover double indemnity under a policy of life insurance, and a like action by W. Erskine Powell against the same defendant. From judgments for the plaintiffs, defendant appeals.

Reversed and remanded in both cases.

Mallory & Mallory, of Selma, for appellant.

Pettus & Fuller and Theodore L. Wade, all of Selma, for appellees.

KNIGHT Justice.

These two cases were by agreement of the parties, and by proper orders of the court made therein, consolidated in the circuit court, and tried as one case, with separate verdicts and separate judgments entered in each of the cases.

The policies of insurance sued on were identical, mutatis mutandis, with respect to the names of the two beneficiaries.

The trial resulted in a verdict in favor of each of the plaintiffs, and judgments accordingly. It is from these judgments the present appeals are prosecuted.

The insurer, appellant here, prior to the bringing of the suits paid to each of the beneficiaries the face amount of each of the policies, and these suits involve only the double indemnity feature of the policies.

For convenience, we shall discuss the case of Life & Casualty Insurance Company of Tennessee v. Elizabeth C. Powell, and what we shall say with reference to that case will apply equally to the case of same appellant v. W. Erskine Powell. The facts are the same.

The appellant on the 13th day of February, 1923, issued a policy of insurance upon the life of Dasie Compton Powell, with Elizabeth C. Powell, wife of the insured, as the beneficiary or in case of her death before that of the insured, then with W. Erskine Powell, as beneficiary in succession. Mrs. Powell survived her husband, and brings this suit upon said policy.

The policy contract contained the following provisions with reference to the waiver of payment of premiums and payment of monthly income, on disability, which we here set out:

"At any time after one full year's premium shall have been paid and before default in the payment of any subsequent premium, and prior to the maturity of the endowment, if the insured shall furnish proof satisfactory to the Company that he has become wholly and permanently disabled by bodily injury or by disease, from causes originating after the delivery of the policy, and will be permanently, continuously and wholly prevented thereby for life from performing any work for compensation or profit, or from following any gainful occupation, and that such disability has then existed not less than sixty (60) days;

"(1) Waiver of Payment of Premium. If the insured has not attained his sixtieth birthday then commencing with the due date of premium next succeeding such proof, the Company will, by endorsement hereon and subject to the conditions herein recited, on each anniversary of such due date of premium, waive payment of the premium for the ensuing insurance year, and any premiums so waived shall not be a lien on this policy, and the guaranteed values set out in the tables herein shall increase in the same manner as if the premium had been paid by the insured; and in the event that satisfactory proof of such disability shall be furnished after the insured shall have attained his sixtieth birthday, then subject to the conditions above stated, such future premiums will not be collected by the Company, but will be charged against the policy as a non-interest bearing loan to be deducted at the maturity of the policy.

"(2) Payment of Monthly Income. Also in the event of satisfactory proof of such disability of the insured occurring before attaining his sixtieth birthday, and subject to all the conditions herein stated, the Company will, upon the written consent of the Assignee, if any, pay to the Insured a Monthly Income of $10.00 for each $1000 of insurance under this policy, the first monthly payment to be made six months after receipt of due proof of said disability accompanied by this policy for endorsement, and subsequent monthly payments to be made monthly thereafter during the continuance of the said total and permanent disability of the Insured. The amount of this policy payable at maturity shall not be reduced by any payments made under this disability provision."

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