Metropolitan Life Ins. Co. v. Usher

• Decision Date: 16 March 1933
• Docket Number: 7 Div. 182.
• Parties: METROPOLITAN LIFE INS. CO. v. USHER.
• Court: Alabama Supreme Court

146 So. 809

226 Ala. 314

METROPOLITAN LIFE INS. CO. v. USHER.

7 Div. 182.

Supreme Court of Alabama

March 16, 1933

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action on a policy of life insurance by Birdie Usher, as administratrix of the estate of John Moragne, deceased against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

O. R Hood and Roger C. Scuttle, both of Gadsden, for appellant.

Joe Brown, of Gadsden, for appellee.

KNIGHT Justice.

The defendant was brought into court to answer the complaint of "Birdie Usher, administratrix of the estate of John Moragne, deceased."

The caption of the complaint is in the following words "Birdie Usher, Administratrix of the Estate of John Moragne, Deceased, v. Metropolitan Life Insurance Company, a Corporation."

The complaint consists of three counts. The first count in no way pretends to state a cause of action in plaintiff's representative capacity against the defendant. In counts 2 and 3, however, the plaintiff "avers that she is the administratrix of the estate of John Moragne, deceased," and then concludes, "hence this suit."

As the caption and summons read, it would appear to be a suit in the individual capacity of plaintiff against the defendant, and that the added words "Administratrix of the Estate of John Moragne" are mere words of description, and do not show that she sues in her representative capacity. Hallmark v. Hopper, 119 Ala. 78, 24 So. 563, 72 Am. St. Rep. 900. As the cause must be reversed for other reasons, on remandment, if plaintiff shall see proper to further pursue the litigation, the complaint may be amended to clearly show that it is a suit in her representative capacity against the defendant. Lucas v. Pittman, 94 Ala. 616, 10 So. 603; Vinegar Bend Lumber Co. v. Chicago T. & T. Co., 131 Ala. 411, 30 So. 776; Ex parte Kelen, 223 Ala. 87, 134 So. 856.

The complaint is substantially in Code form for a suit on a policy of life insurance, and is sufficient. Code, § 9531, form 12; Sov. Camp, W. O. W., v. Gunn, 224 Ala. 444, 140 So. 410; Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538.

In this case, the plaintiff made out a prima facie case by introducing the policy and proving the death of the assured, and that defendant had notice thereof. Manhattan Life Ins. Co. v. Verneuille, 156 Ala. 592, 47 So. 72; Sov. Camp, W. O. W., v. Adams, 204 Ala. 667, 86 So. 737; Sov. Camp, W. O. W., v. Bass, 207 Ala. 558, 93 So. 537; Sov. Camp, W. O. W., v. Hoomes, 219 Ala. 560, 122 So. 686; Bankers' Credit Life Ins. Co. v. Lee, 224 Ala. 398, 140 So. 609. There was no question in the case about the payment of all premiums due on the policy up to the time of the death of the insured, and that these premiums were paid into court by the defendant.

There is no merit in the contention here made by the appellant that the court erred in allowing plaintiff to prove by the witness Birdie Usher (plaintiff) that she had given notice before this suit was brought to the defendant of the death of the insured John Moragne, without offering in evidence the written proof of death which was made and filed with defendant. It appears from the record that the plaintiff had made this proof without objection by defendant, and it was not until after this evidence had been offered and admitted that the defendant questioned the manner in which notice of death was given to the defendant. The language of defendant's objection and exception was: "Defendant also at this point objected to the manner in which the plaintiff had undertaken to prove notice and proof of insured's death, on the ground that the notice and proof of insured's death was in writing, and which writing had been offered to plaintiff by the defendant to be introduced in evidence in open court, which objection the court overruled, to which ruling of the court the defendant then and there excepted." Upon like ground the defendant moved to exclude all the evidence with reference to notice and proof of death, and this motion, the court overruled, and defendant duly excepted. If, upon proper objection, it was encumbent upon the plaintiff to make proof of the notice of death by offering in evidence the written proof, the defendant waived its right to make the insistence by allowing the proof to be made as it was, without objection at the time. The objection and motion came too late. Kramer v. Compton, 166 Ala. 222, 52 So. 351; Jarvis v. State, 138 Ala. 37, 34 So. 1025; Liner v. State, 124 Ala. 1, 27 So. 438; Hays v. Lemoine, 156 Ala. 465, 47 So. 97.

The defendant offered to introduce in evidence a prescription for medicine given by Dr. Hanby to the insured on September 1, 1928. This prescription read: "For John Moragne-Date 9-1-28. Basham Mixture, viii ounces. Sig. 2 or 3 times a day in water. E. K. Hanby."

Upon objection being interposed to this testimony, the defendant's attorney stated to the court that he offered the prescription, "first for the purpose of showing its date, which was the date Dr. Hanby's visit in 1928 was made, and second, for the purpose of showing that it was a specific prescription, a specific remedy for nephritis or Bright's disease, and also offered to show by the witness that it was a prescription for Bright's disease in connection with offering said prescription." The court at first, on...