National Life & Acc. Ins. Co. v. Singleton

• Citation: 69 So. 80,193 Ala. 84
• Decision Date: 20 May 1915
• Docket Number: 30
• Court: Supreme Court of Alabama
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. SINGLETON.

69 So. 80

193 Ala. 84

NATIONAL LIFE & ACCIDENT INS. CO. v. SINGLETON.

No. 30

Supreme Court of Alabama

May 20, 1915

Appeal from City Court of Birmingham; John C. Pugh, Judge.

Action by Mary W. Singleton against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Transferred from the Court of Appeals of Alabama under section 6, Act April 18, 1911 (Acts 1911, p. 450).

Sterling A. Wood, of Birmingham, and Thomas J. Tyne, of Nashville Tenn., for appellant.

Allen Fisk & Townsend, of Birmingham, for appellee.

MAYFIELD J.

This is an action on a life and accident insurance policy. It presents a case in which the insured died; and the main questions are: (1) Whether or not the cause of the death was within the provisions of the policy; and (2), if within, was it within clause "J" of the policy, which provides that in the event the death or the injury results from one of several causes enumerated, then the liability of the insurance company shall be only one-fifth of the amount for which it would otherwise be liable. The schedule of causes of death or injury, which it is claimed brings the case at bar within clause "J," is as follows:

"Injury or loss, fatal or otherwise, of which there shall be no external or visible mark on the body; or injury fatal or otherwise, due wholly or in part, directly or indirectly, to disease or bodily infirmity; or injury, fatal or otherwise, or disability resulting directly or indirectly, from bodily infirmity, any gas, vapor, narcotic, anaesthetic or poison *** or death or disability due to or resulting, directly or indirectly, from injuries intentionally inflicted upon the assured by himself or by any other person (or from injuries inflicted upon the assured by himself, or received by him while insane)," etc.

The defendant insisted, by pleas of tender, that if liable at all it was liable under this clause. The jury, however, found against the defendant for the full amount claimed, which, of course, was a finding against those pleas of tender. Whether or not death resulted from any one of the causes above set forth was clearly a question for the jury, under the evidence in this case, and the court properly submitted that issue to the jury.

It is first insisted by the appellant that there is no evidence that the policy was in force when death resulted to the insured. In this contention the appellant is in error. The policy provided that it should be in force--

"from 12 o'clock noon, standard time, of the day this contract is dated, until 12 o'clock noon, standard time, of the first day of March, 1908, and for such further periods, stated in the renewal receipts, as the payment of the premium specified in said schedule will maintain this policy and insurance in force."

There was evidence to show that the period had been extended as above provided; this, by the admissions of the defendant in its answers to interrogatories, and by its letters to the beneficiary after the death of the insured, when it placed its nonliability on the sole ground that death was not the result of any of the causes mentioned in the policy. Georgia Home Co. v. Allen, 128 Ala. 451, 30 So. 537. The company having accepted the premiums, and placed its nonliability on the single ground above stated, the plaintiff was relieved from further proof that the policy was in force.

It is next insisted that there was a variance between the date of the policy sued on and that of the one introduced in evidence. This was shown to be a mere clerical error, and was abandoned; but it was otherwise without merit, as it conclusively appears that there was no attempt to sue on one policy and recover on another. The two policies alleged and proven were one and the same.

There was evidence sufficient to carry to the jury the question whether or not the death resulted from, or was caused by, a gash cut in the lip of the insured while he was shaving, there being evidence to show that a gash was so cut, and that it became infected and that infection spread from this small gash to his entire face and neck, and to other portions of his body, and that the death was the result of this infection. Gee's Case, 178 Ala. 492, ...