Metropolitan Life Ins. Co. v. James, 8 Div. 507.
Decision Date | 22 March 1934 |
Docket Number | 8 Div. 507. |
Parties | METROPOLITAN LIFE INS. CO. v. JAMES. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.
Action on a policy of life insurance by Jesse James against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Eyster & Eyster, of Decatur, and W. H. Mitchell, of Florence, for appellant.
Lawrence A. May and Simpson & Simpson, all of Florence, for appellee.
The complaint was substantially in the form prescribed by the Code for a declaration on a policy of life insurance. Section 9531, form 12, Code 1923.
The first appeal is reported, Metropolitan Life Ins. Co. v James, 225 Ala. 561, 144 So. 33.
Defendant filed special pleas setting up contract provisions alleged to have been broken. Plea 3 contained, among others, the following averments:
On the second trial the defendant filed pleas of non est factum (pleas 15 and 16) pursuant to the former decision ( Metropolitan Life Ins. Co. v. James, 225 Ala. 561, 144 So. 33), and plea 17, adopting plea 3 and further averring:
"The defendant alleges that the plaintiff herein called at the office of the defendant company on the afternoon of December 24th, and requested a delivery of the policy to him at that time, and the defendant alleges that at the time the plaintiff so called at its office asking for delivery of the policy to him, that the said plaintiff knew at such time that his brother, Roosevelt James, the insured, had been reported as being drowned in the Tennessee River, and that said plaintiff had been to the Tennessee River at the place where his brother was reported to have been drowned and had seen and known of parties searching at the River by dragging the River for the remains of his brother Roosevelt James, the insured, and the defendant alleges that it was the duty of the said plaintiff to then and there have disclosed to the said defendant that the insured, Roosevelt James had been reported as being drowned, and that he purposely refrained from giving the said defendant this information, and the defendant alleges that if it had had such information, said policy would not have been turned over to the said plaintiff, nor the premium taken therefor, and the defendant alleges that it did not know at said time that the said Roosevelt James was reported drowned." (Italics supplied.)
Demurrer was sustained to plea 17, and that ruling is assigned as error.
There was joinder in issue on such pleadings, a jury, verdict, and judgment for the plaintiff, and a motion for new trial, which was overruled.
The evidence shows that the application for insurance was made on December 4, 1930, that on December 24th the first premium was paid by, and the policy delivered to, the beneficiary, a brother of deceased, and that the body of assured was taken from the Tennessee river on February 3, 1931, at a place called Seven Mile Island. The policy in evidence contained the following provisions:
The beneficiary as a witness for himself as plaintiff testified as follows:
The witness then testified that on December 24th he and others went to the river at Seven Mile Island and walked about at such place, not looking for assured, did not inquire whether deceased had been seen, came back to Florence, went to the office of defendant, paid the agent the premium, and the policy was delivered. The witness said:
It is then recited:
The witness admitted the signature of his brother Matthew James to the affidavit of date of December 20, 1930, and that he signed the proof of death stating he (his brother) was...
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