Life & Casualty Ins. Co. of Tennessee v. Foster
| Decision Date | 23 October 1924 |
| Docket Number | 6 Div. 202. |
| Citation | 101 So. 765,212 Ala. 70 |
| Parties | LIFE & CASUALTY INS. CO. OF TENNESSEE v. FOSTER. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Action on policies of insurance against sickness and accident by William Foster against the Life & Casualty Insurance Company of Tennessee. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, page 449 Acts 1911. Reversed and remanded.
In action on policy of insurance against sickness, rejoinder setting up facts avoiding replication as to notice of plaintiff's having venereal disease, and thereafter receiving and accepting premiums, and waiving conditions of policy as to disability, held pertinent.
Upon submission of the cause appellee moved the court to strike from the record copy of the policy of insurance there set out, upon the ground that the same was never introduced in evidence by appellant or appellee. The bill of exceptions recites that plaintiff's attorney stated he had lost the policies sued on, whereupon it was agreed the "defendant had theretofore issued three different policies of insurance to the plaintiff," providing certain weekly benefits and containing the provisions following: "It being agreed that the policy set out below was identical with each of the three policies held by the plaintiff, *** the following policy was introduced in evidence by the defendant as showing the terms and conditions of the policies sued on," followed by a copy of the policy.
Count 1 of the complaint as originally filed claimed $168 for sick benefits due and owing plaintiff for 21 weeks, from the 5th day of July, 1921, to the 28th day of November, 1921 inclusive, under three policies "issued to the plaintiff by the defendant in the years 1918, 1919, and _____, and in force up to and including the 28th day of November, 1921."
Counts 2, 3, and 4 of the amended complaint declares, respectively, on the several policies, and in each count it is averred "that on the 5th day of July, 1921, he was taken ill and remained ill and sick up to and continuing after November 28, 1921, while said policy was paid up and in full force and effect."
Plea 3 avers that the policy sued on contains this provision:
And it is averred that no such certificate was furnished defendant or its agents.
Plea A sets up the following provision of the policies:
"No benefits will be paid for sickness or death resulting directly or indirectly from diseases contracted or injuries received before the delivery of this policy; nor will any benefits be paid for sickness, accident, or death resulting directly or indirectly from intemperance, immorality, or venereal diseases, however incurred."
And it is averred that the sickness for which benefits are claimed resulted directly or indirectly from diseases contracted before the delivery of this policy.
Plea C sets up this provision of the policy:
"Weekly benefits will only be paid when the insured has been confined strictly to his bed for seven consecutive days."
-And avers that the sickness for which benefits are claimed was not such as confined plaintiff strictly to his bed for seven consecutive days.
Plea D is in substance the same as plea 3.
Plaintiff demurred to these pleas on the grounds that (1) they do not traverse and tender issue; (2) they neither traverse and tender issue nor confess and avoid; and (3) for all that appears "this defendant received the one certificate notifying them of plaintiff's illness and failed to pay it, wherefore your plaintiff says that they waived further notice and are estopped from claiming want of regular notice."
Plaintiff demurred to the rejoiner of the defendant upon the grounds (1) that it does not tender issue; (2) that it does not traverse all or a material part of the plaintiff's replication; (3) that it is guilty of duplicity; (4) that is is frivolous and does not tender issue; (5) that it is merely a conclusion of the defendant; (6) that it is merely argumentative; and (7) that it does not confess and avoid the facts alleged in the plaintiff's replication.
Jacobs & Abercrombie, of Birmingham, for appellant.
G. M. Edmonds and Albert Rosenthal, both of Birmingham, for appellee.
The submission was on motion and on merits. When the whole record and the agreement of counsel recited in the bill of exceptions are considered, we are of opinion that the policies of insurance declared upon were before the trial court and jury....
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