Malone v. Protective Life Ins. Co.

• Decision Date: 30 March 1939
• Docket Number: 7 Div. 438.
• Citation: 188 So. 233,237 Ala. 640
• Parties: MALONE v. PROTECTIVE LIFE INS. CO.
• Court: Alabama Supreme Court

188 So. 233

237 Ala. 640

MALONE v. PROTECTIVE LIFE INS. CO.

7 Div. 438.

Supreme Court of Alabama

March 30, 1939

Rehearing Denied May 4, 1939.

Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.

Action on a policy of life insurance by Essie Malone against the Protective Life Insurance Company.Judgment for defendant and plaintiff appeals.

Reversed and remanded.

Rains &amp Rains and McCord & McCord, all of Gadsden, for appellant.

Cabaniss & Johnston, of Birmingham, and O. R. Hood and Roger C Suttle, both of Gadsden, for appellee.

BROWN Justice.

All assignments of error, except the 20th and 21st, have been waived by the appellant's failure to mention them in the original brief, filed at the time of the submission of the case, and the waiver can not be avoided by the supplemental brief subsequently filed.Louisville & Nashville R. Co. v. Holland,173 Ala. 675, 55 So. 1001;Hughes v. Bickley,205 Ala. 619, 89 So. 33.

While the insistences as to assignments of error 20, overruling plaintiff's motion for new trial, and 21, giving the affirmative charge at the defendant's request in its favor, are meager, they are preceded by a statement of the pleadings and the evidence and are up to the standard recognized as sufficient to prevent waiver in Alabama Fuel & Iron Co. v. Williams,207 Ala. 99, 105, 91 So. 879, 885, where it was observed, as to assignments predicated on rulings of the court as to the alleged prejudicial argument to the jury: "It is sufficient to say that the brief as found in the record makes specific reference to this line of argument."

The view we take of the case renders it is only necessary to treat the last assignment of error.

The appellee in its brief states the following as the facts: "Thereafter, on January 15, 1936, B. A. Malone made out a new application for additional insurance and placed it in the hands of the Etowah Farm Bureau Exchange at Gadsden but neglected to sign the application (R. p. 13).He also paid to the Farm Bureau Exchange the premium on the additional insurance.This application for additional insurance was received by the Appellee on January 17, 1936, and was immediately returned for the signature of B. A. Malone.The application was signed and was again received by the Appellee on January 23 and the Appellee immediately began its usual investigation to ascertain the condition of the health of Mr. Malone.On January 24, 1936, B. A. Malone died following an appendicitis operation [appendectomy] and Appellee received notice of the death of Mr. Malone on January 28, 1936.No action was ever taken by Appellee on the application of B. A. Malone for additional insurance and no certificate or policy of insurance was ever issued--he having died pending the usual investigation."

If this statement was supported in its entirety by the record, there could be no question of the right of appellee to the affirmative charge.

This statement is not supported in its entirety.To the contrary the plaintiff's evidence goes to show, that Malone was a member of the organization and was covered by the group...