National Casualty Co. v. McCarn

• Decision Date: 13 April 1922
• Docket Number: 6 Div. 529.
• Citation: 207 Ala. 321,93 So. 31
• Parties: NATIONAL CASUALTY CO. v. MCCARN.
• Court: Alabama Supreme Court

93 So. 31

207 Ala. 321

NATIONAL CASUALTY CO. v. MCCARN.

6 Div. 529.

Supreme Court of Alabama

April 13, 1922

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action by Mary E. McCarn against the National Casualty Company, to recover from a policy issued on the life of her deceased husband against accident death. Judgment for the plaintiff and defendant appeals. Affirmed.

Edgar Allen and Graham Perdue, both of Birmingham, for appellant.

Wm Vaughan and W. M. Sorrell, both of Birmingham, for appellee.

McCLELLAN J.

The appellee sued the appellant to recover upon a contract of insurance, issued by the appellant, against the death (among other events) of Robert E. McCarn from independent accidental causes, etc. Only count 1 was submitted to the jury. It avers:

That appellant "insured the life" of McCarn "until, to wit, the 1st of November, 1914, and thereafter for such further time as the insured shall have paid the monthly stipulated premiums thereon ***"; that insured was so injured on April 5, 1919, that he died therefrom on April 9, 1919; and "that the premiums on said policy had been paid, and that the same [i. e., policy] was in force and effect at the time of the death of the said insured."

The necessary effect of the averments of count 1 as to the duration of the insurance is that measured by the payment of "monthly stipulated premiums," and the period is defined in the count's unqualified allegation that "the premiums"-meaning the "stipulated premiums"-had been paid, with the positive averment following that the contract was "in force and effect at the time of the death of the said insured." To assume that the April, 1919, or other monthly premium had not been paid prior to the death of insured would contradict the allegations of the count. Under this count, the pleader assumed the burden to show, at least prima facie, that every "stipulated premium" essential to continue the insurance, to keep it "in force and effect at the time" of insured's death, had been paid. The demurrer to count 1 was properly overruled.

It appears upon the record that the determining inquiry on the trial was whether the April, 1919, "monthly stipulated premium" was seasonably paid. McCarn was injured on April 5, 1919. He died of the injury on April 9, 1919. He was a subagent of the company during April, 1919, and theretofore in the territory where the injury was suffered, and appears to have been authorized to collect and remit premiums to the home office and to issue receipts for premiums. On April 7, 1919, two days after McCarn's injury, he or his wife (over McCarn's signature) sent West, the Birmingham district manager of the company, a letter and a check for $2.45, both dated April 5, 1919, "to pay my insurance," requesting that "my receipt" be forwarded "to me at Winfield, Ala. ***" West cashed the check on April 8, 1919, and advised the company of the fact of receipt of the fund, not knowing that McCarn had been theretofore injured on the 5th of April, 1919. On April 18, 1919-in obedience to instruction from the company, that had been informed of McCarn's injury and death-West sent Mrs. McCarn a check for $2.45, which she received and cashed, keeping the money, stating in his letter accompanying the check:

"I cannot receive the money, because I have no record of any such account, and therefore not the one to receive it, as I am not the agent of Mr. McCarn."

The court refused defendant's special request for instruction numbered 6. It will be reproduced. Aside from its faulty wording, no prejudicial error resulted from its refusal, when defendant's given...