Mutual Savings Life Ins. Co. v. Osborne

• Decision Date: 28 October 1943
• Docket Number: 8 Div. 253
• Citation: 245 Ala. 15,15 So.2d 713
• Parties: Mutual Savings Life Ins. Co. v. Osborne.
• Court: Alabama Supreme Court

15 So.2d 713

245 Ala. 15

Mutual Savings Life Ins. Co. v. Osborne.

8 Div. 253

Supreme Court of Alabama

October 28, 1943

Rehearing Granted Nov. 26, 1943.

Appeal from Circuit Court, Madison County; Schuyler H. Richardson, Judge.

Transferred from Court of Appeals under Code 1940, Tit. 13, § 102.

Reversed and remanded on rehearing.

See also, 242 Ala. 589, 7 So.2d 319.

The affidavit referred to in the affidavit of witness Vickery is as follows:

"Know all men by these presents that Calvin Osborne, now deceased carried Policy No. G-2022271 with the Mutual Savings Life Insurance Company. This policy was issued by said Company August 16, 1937. Mr. Osborne paid four or five weeks on same, then, losing interest, allowed it to lapse.

"Going back to his step-sister's place of business, I requested Mary Toney to pay up $1.50 and put his policy back in force. She replied that she could not pay that much, but asked me to write him a new policy. I then wrote a new application on said Calvin Osborne's life, signed Calvin Osborne's name myself to the application, sent it in to the Home Office and awaited a new policy. The new policy was issued Monday, October 25, 1937, and was No. 2025440.

"In going over my debit on October 25th, I forgot to take the new policy out to deliver it, but saw Mary Toney, told her the policy had been issued and asked if she wanted to pay on it. She declined, saying, 'Wait until next Monday and I will pay you then and you can bring the policy then.'

"Then, on the following Monday, which was October 31st. Calvin Osborne met his death. The next day, which was the day I was to have delivered the policy. I hunted Mr. D.W. Osborne to fill out the proofs of death, but did not locate him until Wednesday, at which time I forwarded to the Mutual Savings Life Insurance Company these proofs of death in the form of a claim. This was on Thursday, November 4th.

"I never ever delivered this new policy, nor any receipt to the insured nor to any of his people, nor to anyone else except to the Home Office.

"I have read the above and it is true in every respect.

"(Signed) E.D. Graves.

"Subscribed and sworn to before me this the 17th day of November, 1937.

"(Signed) Elsie Davidson, N.P."

The following charges were refused to defendant: "5. The Court charges the jury that fraud is never presumed, but must be proven by the party asserting it, and it will not be imputed when the facts and circumstances from which it is supposed to arise may reasonably be consistent with honest intentions.

"6. If you are reasonably satisfied from the evidence that the first premium on the Calvin Osborne policy was not paid then I charge you to find for the defendant.

"9. I charge you that the policy of insurance on the life of Calvin Osborne would not take effect until it was delivered either actually or constructively, and the first premium paid, during the life of the said Calvin Osborne.

"10. I charge you that the payment of the initial premium on the policy of insurance in question is of the essence of the risk of insurance.

"12. I charge you that the agent, E.D. Graves, had no authority to waive the payment of the first premium on the Calvin Osborne policy, and the delivery of a policy to the said Graves without such payment was ineffective to constitute a contract of insurance."

"The policy of insurance provides in part as follows:

" 'Mutual Savings Life Insurance Company * * * Subject to the terms and conditions of this policy issued to Calvin Osborne * * *, and in consideration of the statements contained in the application copied on the reverse side hereof, and of the payment of the weekly premium mentioned herein, on or before each Monday during a period of Whole Life years, or until the death of the persons named in the schedule below of insured Lives, hereby insures the life of each person named in the schedule below of insured Lives, for the amount set opposite the name of each insured.'

" 'Conditions, Privileges and Limitations.

" '1. Premiums. Each premium is due and payable at the Home Office of the Company in advance, but will be accepted elsewhere by a duly authorized Agent, who shall at the time of payment enter the same in the receipt book belonging to this policy.' "

S.A. Lynne, of Decatur, for appellant.

Watts & White and John R. Thomas, all of Huntsville, for appellee.

THOMAS Justice.

This is the second appeal. The facts are stated in Mutual Savings Life Insurance Co. v. Osborne, 30 Ala.App. 399, 7 So.2d 314, 317 and 318, certiorari denied 242 Ala. 589, 7 So.2d 319.

The case was submitted to the jury on amended counts 1 and 2, and on the plea of the general issue. The judgment was for the plaintiff.

The suit was ex delicto grounded in the fraud and deceit (claimed) of defendant practiced upon plaintiff whereby the latter was induced to surrender and release a valuable cause of action then accrued on an insurance policy under which plaintiff was the named beneficiary. The value of the policy and right of action thereunder was $1000, and the consideration for the release the sum of $287 paid by defendant in liquidation of a funeral bill incurred by beneficiary for assured. Plaintiff claimed the difference between these two sums.

The jury returned a verdict for the plaintiff; whereupon the defendant on November 9, 1942, filed its motion for new trial, which was not heard and continued by the court until December 15, 1942, when the motion was overruled and denied. Thus nothing was presented for review by the motion. Alabama Gas Co. v. Jones, Ala.Sup., 13 So.2d 873.

The respective tendencies of the evidence presented a conflict to the jury for decision. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. This was likewise the decision of the Court of Appeals. Osborne v. Mutual Savings Life Insurance Co., 30 Ala.App. 399, 7 So.2d 314.

The evidence of the witness Farrish tended to support the plaintiff's claim that assured met with an accidental death within the provisions of the policy. The defendant denied liability because the policy had not been delivered and was not in force. The offer of a compromise and payment of $175 for the funeral bill of $287 was brought about by Vickery, the adjusting agent of defendant.

The witness Osborne, among other things, testified that: " * * * and he [Vickery] said if I would sign that policy and the other policy over he would pay the undertaker's bill. He said it had lapsed, but he would take it up. That is, the old one. He told me what he would do, and I said, 'Wait and give me until in the morning to study it over'. And he said, 'No, I am going to do what I am going to do in the next fifteen minutes. I am due in Decatur now.' Asked by his counsel: 'Did you sign anything on the face of that policy' witness answered, 'Yes, sir, I studied a minute or two and I thought I wanted that undertaker's bill paid, and I thought he might be telling me the truth, and I signed both of them over to him.' I had no independent advice from anybody at that time as to this matter. * * *."

After the cross-examination, substantially to the same effect, defendant offered in evidence the plaintiff's affidavit, as follows:

" 'Know all men by these presents, that Mr. E.D. Graves told me on Wednesday, November 3, 1937, that he wanted me to sign some papers for a death claim and that he had a new policy on my son's life that had been issued before he died. He said that he had this policy in the office and was ready to deliver it to me on November 3rd. Now, if Mr. Graves had brought that policy out to us when it was issued, we would have paid on it and taken it out. Signed this the 17th day of November, 1937, at Huntsville, Alabama. (Signed) D.W. Osborne. Sworn and subscribed on this the 17th day of November, 1937, Florence Dodge, Notary Public.'

" 'Sometime that evening I told Mr. Vickery if I had known the policy wasn't in force I wouldn't have put as much in the ground as I did because I couldn't pay it. I told him that sometimes that evening I don't just know what time it was. I went back to the undertaker's office after that and then I went home. * * * ' " And the redirect examination was to the same effect.

The plaintiff offered in evidence the testimony of Homer Osborne who recalled the transaction with reference to the issuance of the policy which occurred a few weeks before the death of the assured; that the agent came out to collect on the old policy and stated that it would be better to take out a new policy; filled out the blanks and "Calvin pulled out a dollar bill and gave it to him and Mr. Graves gave him back some money"; that witness did not know how much change was given; that nothing had been said about the premium; that he saw assured after he applied for the policy, which is the basis of this suit, and that he appeared "to be in good health" on Saturday night before he was killed.

The defendant offered in evidence the former testimony of Bruce Patton to the effect that after the lapse of the first policy, Graves and the witness went to see Calvin Osborne to secure payment of premium which was not paid; that he was present a portion of the time on November 17th, and heard the conversation between Vickery and Osborne and that Vickery asked "me and Collier if they paid the funeral bill for Mr. Osborne it would be worth that much to the company as advertisement." He further stated that if Mr. Osborne would not be satisfied with taking a settlement of that nature, the best thing for him to do would be to see a lawyer, whereupon Osborne said "he felt like if the company did that he would be pleased with the Mutual Savings"; that at the time in question the witness was working for the company and is still so connected; that he wasn't...