Metropolitan Life Ins. Co. v. James
| Decision Date | 29 June 1937 |
| Docket Number | 8 Div. 561 |
| Citation | 176 So. 813,27 Ala.App. 575 |
| Parties | METROPOLITAN LIFE INS. CO. v. JAMES. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 5, 1937
Appeal from Circuit Court, Lauderdale County; Robert M. Hill Special 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.
Certiorari denied by Supreme Court in Metropolitan Life Ins. Co. v James (8 Div. 843) 176 So. 816.
Eyster & Eyster, of Decatur, and W.H. Mitchell and George Bliss Jones, both of Florence, for appellant.
Simpson & Simpson and L.A. May, all of Florence, for appellee.
The suit in this case was originally brought on one count declared on a life insurance policy. The complaint was afterwards amended by filing counts 2 and 3 and by striking out count 1. Each of them claimed of the defendant $1,000, due on a policy of life insurance on the life of Roosevelt James. Sufficient allegations were made of the death of the insured and of the ownership of the policy by the plaintiff.
As thus filed, the action was just a plain simple suit on an insurance policy, but, through four trials in the nisi prius court and four appeals, the pleadings have grown and broadened until in the present appeal the pleadings and the rulings on the same constitute 39 pages of a transcript embracing 124 pages of typewritten matter.
Former opinions and decisions in this case may be found in Metropolitan Life Ins. Co., Inc., v. James, 225 Ala. 561, 144 So. 33; Id., 228 Ala. 383, 153 So. 759; and Id., 231 Ala. 295, 164 So. 377.
The judgment entry in the present case embraces the rulings of the trial court on demurrers to counts 3 and 4; the rulings of the court on demurrers to pleas 3 to 19, both inclusive, and demurrers 7, 8, and 9 to pleas 17, 18, and 19; demurrers to replications 3 to 12, both inclusive, and demurrers to replications 1-A to 6-A, both inclusive.
To this point, the decisions of the Supreme Court, as above set out, settled all of the questions presented; and it will not be necessary for us to go into or to discuss them, other than as may hereinafter appear.
On this trial the plaintiff files additional replications: 9-A, 10-A, 11-A, and 18-A to plea 17, and replications 12-A, 13-A, 14-A, and 18-A to plea 18, and replications 15-A, 16-A, 17-A, and 18-A to plea 19. Whereupon, the defendant files motions to strike portions of said replications, on various grounds, specifically set out as grounds of said motions. Among which will be found grounds raising the questions hereinafter decided.
After the motion of the defendant to strike the various parts of the replications was overruled, appropriate demurrers were filed to all these replications by the defendant.
In an opinion rendered by the younger Somerville, in which Simpson, Judge, concurred, we find the following expression: Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 59 So. 273, 279.
The foregoing was written in commenting upon sections 9457 and 9458 of the Code of 1923, which at that time were sections 5321 and 5322 of the Code of 1907. The motion to strike might well have gone to the entire replications on the ground they were prolix, and certainly, ground 2, "The verbiage is surplusage," was sufficient to raise the question as to the portion of the replications moved to be stricken.
The overruling of the motions to strike, and of the demurrers to the replications, forced the defendant to take issue upon the allegations of the replications which, not properly pleaded, presented false issues, to the prejudice of the defendant.
On the first appeal in this case,...
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