Life Ins. Co. of Va. v. Hanback

• Decision Date: 20 May 1948
• Docket Number: 8 Div. 421.
• Citation: 35 So.2d 696,250 Ala. 643
• Court: Alabama Supreme Court
• Parties: LIFE INS. CO. OF VIRGINIA v. HANBACK.

35 So.2d 696

250 Ala. 643

LIFE INS. CO. OF VIRGINIA v. HANBACK.

8 Div. 421.

Supreme Court of Alabama

May 20, 1948

Mitchell & Poellnitz, of Florence, for appellant.

Bradshaw & Barnett, of Florence, for appellee.

The complaint is as follows:

'Plaintiff claims of the defendant $240.00, due on a policy whereby the defendant on the 7th day of October, 1945 insured the plaintiff by its certificate No. 6-2935 under Group Accident and Sickness Policy No. GD-140, whereby the defendant agreed to pay to the plaintiff the sum of $14.00 per week for the period that plaintiff was totally and continuously disabled by sickness--and thereby prevented from performing each and every duty of his occupation. The plaintiff alleges that he became

so disabled by reason of sickness on the 1st day of December 1945, to April 1, 1946, which said sum of money is due and unpaid and of which the defendant has had notice. Said policy is the property of the plaintiff. Plaintiff claims 6% interest thereon.'

STAKELY, Justice.

This is a suit brought by Marvin S. Hanback against The Life Insurance Company of Virginia on a certificate issued under a group accident and sickness policy. The complaint consisted of one count, which will appear in the report of the case. It was amended by striking the words 'December 1' and inserting in lieu thereof the words 'November 17'. It is insisted that the amended complaint, which substantially follows the statute (form 12, Title 7, § 223, Code of 1940) is subject to demurrer for failure to allege that the policy was in force and effect during the period for which disability payments are claimed. The complaint was not subject to demurrer in this regard. Inter-Ocean Casualty Co. v. Anderson, 245 Ala. 534, 17 So.2d 766; American Bankers' Ins. Co. v. Dean, 227 Ala 387, 150 So. 333; Sovereign Camp, W.O.W., v. Gunn, 224 Ala. 444, 140 So. 410.

It is further claimed that the complaint does not clearly show whether recovery is sought for loss under the certificate or under the group policy. This position is not correct. The group or master policy is issued to the employer and the certificate is issued to the employee. But the two contracts are not separate and distinct without relationship to each other. On the contrary while the suit is upon the certificate, 'The policy contract is to be found upon examination of the provisions of the certificate in connection with those of the 'Master Policy'.' All States Life Ins. Co. v. Steward, 242 Ala. 258, 5 So.2d 784, 785. In this connection there is no violation of § 75, Title 28, Code of 1940. Page v. Prudential Ins. Co. of America, 231 Ala. 405, 165 So. 388. The demurrer was properly overruled.

The demurrers of plaintiff to pleas 2 through 9 inclusive were sustained by the court. Evidence of the matters alleged in the pleas was introduced under the general issue. Whatever error, if any, there may have been in these rulings, was error without injury. Coolidge v. Collum, 211 Ala. 203, 100 So. 143; Montgomery Production Credit Ass'n v. M. Hohenberg & Co., 31 Ala.App. 117, 12 So.2d 865. And this is especially true when the incidents of the trial, such as for example the charge of the court, show that the jury understood and passed on the issues as though the pleading was sufficient. Mindler v. Crocker, 245 Ala. 578, 18 So.2d 278. Counsel appear to be in some uncertainty as to the provisions in the policy relating to notice. The provisions of the policy introduced in evidence make proof of loss a condition precedent to recovery. When such a policy is sued on, the plea of the general issue casts on the plaintiff the burden of showing that due proof of loss has been made. If the policy does not make proof of loss a condition precedent to recovery, then failure of proof of loss must be specially pleaded. Continental Assur. Co. v. Hendrix, 246 Ala. 451, 20 So.2d 851; New York Life Ins. Co. v. Sinquefield, 231 Ala. 185, 163 So. 812.

The court sustained objection to the following question propounded to Dr....