Metropolitan Life Ins. Co. v. James

• Decision Date: 05 October 1939
• Docket Number: 8 Div. 968.
• Citation: 238 Ala. 337,191 So. 352
• Parties: METROPOLITAN LIFE INS. CO. v. JAMES.
• Court: Alabama Supreme Court

191 So. 352

238 Ala. 337

METROPOLITAN LIFE INS. CO. v. JAMES.

8 Div. 968.

Supreme Court of Alabama

October 5, 1939

Appeal from Circuit Court, Lauderdale County; Robt. 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.

Affirmed.

Chas H. Eyster, of Decatur, and W. H. Mitchell and George Bliss Jones, both of Florence, for appellant.

R. T Simpson, R. T. Simpson, Jr., and L. A. May, all of Florence for appellee.

BOULDIN Justice.

This is the fifth appeal in this cause.

For former decisions, three by this court, and one by the Court of Appeals, see: Metropolitan Life Ins. Co. v. James, 225 Ala. 561, 144 So. 33; Metropolitan Life Ins. Co. v. James, 228 Ala. 383, 153 So. 759; Metropolitan Life Ins. Co. v. James, 231 Ala. 295, 164 So. 377; Metropolitan Life Ins. Co. v. James, 27 Ala.App. 575, 176 So. 813.

Throughout the litigation a primary issue has been presented by pleas setting up a stipulation in the policy of life insurance sued upon to the effect that no liability should be incurred unless the initial premium was paid in full and the policy delivered during the lifetime of the insured; with allegations that such premium was not paid, nor delivery made during the lifetime of the insured. This defense was presented by pleas of non est factum.

Roosevelt James, the insured, made application for the policy through the local agent of the insured in Florence naming his brother, Jesse James, this plaintiff, as beneficiary. The application of date December 4, 1930, was approved, and the policy, dated December 10, 1930, was issued at the home office, and forwarded to the local agent to be delivered upon full payment of the first quarterly premium.

The insured was working at Seven Mile Island, some miles below Florence. He made part payment of the premium when the application was made, and left money with plaintiff to pay the balance, and accept delivery of the policy when it came. Plaintiff did pay the balance and receive the policy from the local agent on the afternoon of December 24th, 1930.

Forty-one days later the body of the insured was found in the Tennessee River near Seven Mile Island. Thereupon proofs of death were made disclosing that he came to his death, so far as known or believed, by drowning on December 20th, the date he was last seen alive while crossing the Tennessee River near where the body was found.

On first appeal, 225 Ala. 561, 144 So. 33, this proof of death was set out, and we held the prima facie case made by such proof showing death before delivery of the policy was not rebutted by other evidence, and the defendant was due the affirmative charge.

In later trials some evidence was produced tending to show the insured was seen alive in and near Florence on December 24th, or on Christmas day. We have held, on subsequent appeals, this issue was for the solution of the jury. Uniformly the juries have found for plaintiff.

The issue was further complicated by evidence of the location of the body, the boat of the insured tied up, and tracks, indicating he could not have come to his death at the time and place he was last seen rowing his boat on the Tennessee River. No question of the weight of the evidence on this issue is now presented for review.

On the second trial plea 17 was interposed, and demurrer thereto sustained by the trial court. We refer to our opinion on Second Appeal, 228 Ala. 383, 387, 153 So. 759, setting out this plea. For clarity, however, we note this plea does not adopt by reference the averment of plea 3 to the effect that the policy was not delivered during the lifetime of the insured, but only that portion of plea 3 quoting provisions of the policy.

The plea was held good.

On the third trial defendant interposed pleas 18 and 19, of similar import. Plea 19 appears in the report of the case on this appeal. Demurrers being overruled, the cause went to trial also on the issues presented by pleas 17, 18 and 19.

These pleas, in varying language, charge fraud in the procurement of the delivery of the policy by suppression of facts known to the plaintiff; in effect, that the insured was missing, was reported to have been drowned in the Tennessee River, and search was being made for him; and that the policy would never have been delivered, if these facts had been disclosed to the delivering agent. The trial court, in his oral charge, undertaking to follow the construction of these pleas given by this court on former appeals told the jury: "They assert the defense that plaintiff suppressed certain facts with the intent to deceive or with intent to defraud * * * If he did suppress facts material to be known, and which he was under obligation to communicate, and, in so doing he had the intention to defraud or deceive, and if when he went to the office of the defendant company he had heard his brother was missing or had disappeared and was in all probability already dead, and he did not communicate this, and, if this has been proven to your reasonable satisfaction from all the evidence in the case, then the plaintiff would not be entitled to recover. On the other hand, if he acted in good faith, if he had no intention to deceive or intention to defraud the defendant company then the plaintiff would be entitled to recover under that plea and if you are reasonably satisfied of that after hearing all the testimony, you would find your verdict for the plaintiff." [ [Italics supplied.]

Defendant reserved an exception to the italicized portion of these instructions.

Whether the "intent to deceive" is, under the circumstances of this case, an element of the defense of fraud, is the main question stressed on this appeal.

Dealing with these pleas on the last appeal to this court, 231 Ala. 295, 296, 164 So. 377, it was declared: "The defense asserted by these pleas is that plaintiff, with intent to deceive, concealed from defendant facts known to plaintiff, which, in the circumstances, it was plaintiff's duty to disclose, and thereby fraudulently procured possession of the policy, while if he had disclosed such facts the policy would not have been delivered to him."

In this opinion it was further observed these pleas do not allege the insured was in fact dead at the time of delivery of the policy, but proceed on the theory, that although further developments disclosed the policy was delivered in the lifetime of the insured, when, in fact, plaintiff was entitled to its...