Metropolitan Life Ins. Co. v. James, 8 Div. 507.

Decision Date22 March 1934
Docket Number8 Div. 507.
PartiesMETROPOLITAN LIFE INS. CO. v. JAMES.
CourtAlabama 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.

THOMAS Justice.

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:

"'This policy is issued in consideration of the application therefor, copy of which application is attached hereto and made a part hereof.
"'The provisions and benefits printed or written by the Company on the following pages are a part of this policy as fully as if recited over the signatures hereto attached.
"'4. Entire Contract. This policy and the application therefor constitute the entire contract between the parties and all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement shall avoid this policy, or be used in defense of a claim hereunder unless it be contained in the application therefor, and a copy of such application is attached to this policy when issued.'
"The defendant alleges that the application for said policy made by the said Roosevelt James was attached to and became a part of said policy, and that said application, and therefore the policy, contained terms and provisions and conditions as follows:
"'It is understood and agreed that the Company shall incur no liability under this application until it has been received, approved, and a policy is issued and delivered, and the full first premium stipulated in the policy has actually been paid to and accepted by the Company during the life time of the applicant in which case such policy shall be deemed to have taken effect as of the date of the insurance as recited on the first page thereof.'
"The defendant alleges that said suit policy was never delivered, and that the full first premium stipulated in the policy was not actually paid to and accepted by the Company during the life time of the applicant." (Italics supplied.)

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:

"This policy is issued in consideration of the application therefor, a copy of which application is attached hereto and made part hereof, and of the payment for said insurance on the life of the above named insured. * * *
"This policy and the application therefor constitute the entire contract between the parties, and all statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no statement shall avoid this policy or be used in defense of a claim hereunder unless it be contained in the application therefor and a copy of such application is attached to this policy when issued. * * *
"That the company shall incur no liability under this application until it has been received, approved, and a policy issued and delivered, and the full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the applicant, in which case such policy shall be deemed to have taken effect as of the date of issue as recited on the first page thereof."

The beneficiary as a witness for himself as plaintiff testified as follows:

"I never did see Roosevelt alive after December 4th. I was living here in town all that period of time. I was at the Tennessee River at Seven Mile Island on February 3rd when his body was recovered.

"Q. And you had been down to the river searching for his body, either yourself or with your friends, December 24th, had you not? Between December 24th and February 3rd? A. Yes sir.

"We were not dragging all the time in the neighborhood of Seven Mile Island and the Towheads. We were not dragging practically every day. They dragged for awhile but not practically every day.

"Q. And when you started in dragging on December 24th you kept it up every day for awhile? A. Did not begin till after Christmas. I did not just testify that I started dragging on the 24th. I said after Christmas. I was not down there on Christmas day. I worked in Florence in December, 1930. George Simpson worked at the same place. George Simpson and I would not go to work together every day.

"Q. On the morning of December 23, which was Tuesday morning before Christmas on Thursday, George Simpson told you he heard your brother Roosevelt was missing did not he, and that they were looking for him? A. He told me they had been looking for him to go to work. * * *

"Q. Well, on Tuesday afternoon you went down to Eula Austin's house and asked her if she knew where Roosevelt was, didn't you? A. Yes, I went to her house Tuesday. I don't know whether it was after noon or before noon. It was not after I heard he was missing that I went down to Eula's. I had not heard he was missing. I had not heard that they could not find him. I had heard that he had not showed up on the work down there. It was after that I went to Eula's.

"Q. Were you looking for Roosevelt? A. No sir. I went down to see Eula.

"Q. To see if she knew where he was? A. To see the last time she saw him." (Italics supplied.)

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: "I don't remember Mr. Emmett Anderson telling me that the last time he saw Roosevelt was on the river in a skift. Where they found Roosevelt was a good piece from the towhead I went to on Wednesday morning and in different stream. I guess it was about a mile away. * * * We came back to town that afternoon. I went up to the Metropolitan Life Ins. Cos. office that evening. * * * I had been down to the river that day. Across the river to the towhead and to Seven Mile Island and came back to town and went to the Metropolitan Company's office. I paid Mr. Hester the difference between $5.18 and $1.50. Mr. Hester asked me did I know where Roosevelt was. I told him I didn't know. * * * That was Christmas Eve. I didn't go back to the river on December 25th. I don't remember whether I went back on the 26th. * * * I told him (Dr. Hubbard) that he was missing on December 20th, or that they had not seen him on his work since December 20th. I don't remember whether he asked me or my brother about it. My brother and I were together with Dr. Hubbard."

It is then recited: "The defendant at this point introduced in evidence the affidavit and warrant of arrest signed by Matthew James, February 4, 1931, before J. T. McPeters, charging Raymond Crittenden and Henry Crittenden and Emmett Anderson with unlawfully hitting Roosevelt James with some blunt instrument on December 20, 1930 (setting out the affidavit). Plaintiff's name appeared as a witness on the back of the affidavit."

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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