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

• Decision Date: 12 November 1921
• Docket Number: 8 Div. 816.
• Citation: 92 So. 201,18 Ala.App. 347
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. JACKSON.
• Court: Alabama Court of Appeals

92 So. 201

18 Ala.App. 347

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

8 Div. 816.

Court of Appeals of Alabama

November 12, 1921

Rehearing Denied Jan. 10, 1922.

Appeal from Morgan County Court; W. T. Lowe, Judge.

Action by Joe Jackson against the National Life & Accident Insurance Company on two policies issued on the life of Jesse Jackson. Judgment for plaintiff, and defendant appeals. Affirmed.

S. A Lynne, of Decatur, for appellant.

Wert &amp Hutson, of Decatur, for appellee.

SAMFORD, J.

Appellant's contention that it is entitled to the affirmative charge as to counts C and D is not well taken. Even if the amounts claimed, by inadvertence or otherwise did not correspond with the amounts named in the policies this fact alone would not preclude a recovery as to the amount claimed, if the proof was otherwise sufficient.

By the pleading and evidence it is admitted that the insured procured a policy of insurance to be issued to her by the defendant company in April, 1918, which policy called for weekly premiums to be paid to defendant during the life of the policy, and which the insured continued regularly to pay and the defendant to receive until her death. It also appears that, subsequently, the same party procured to be issued from the same company two policies, dated, respectively, January and September, 1919, both of which policies called for the payment of weekly premiums during the life of the policies, which were regularly paid by the insured and received by the defendant. In procuring the second policy, and in answer to a question in the application made the basis of the issuance of the policy, she answered "No" to the question "Are you insured in this company?" And in procuring the third policy she answered "Yes" to the same question, and designated the second policy, thereby excluding the first. In the contracts of insurance sued on there appears this clause:

"This policy shall be void, if there is in force upon the life of the insured a policy previously issued by this company, unless the policy previously issued contains an indorsement signed by the proper officer authorizing the same."

There was such indorsement on the second policy issued, but not on the first. On the death of the insured, the defendant recognized the first policy as being in force, and paid the amount named therein to the designated beneficiary, but denied liability upon the last two policies, upon which this suit is brought, and in bar of a recovery pleaded the condition set out above, to which the plaintiff by way of replication set up a waiver of this clause by the company itself, in that, with knowledge of the failure to have the policy indorsed as required, defendant continued during a long period, and until the death of insured, to collect the premiums upon the policies sued on. To this replication defendant interposed demurrer.

Assuming that the grounds of demurrer, which are general in their nature, raise the question insisted upon in appellant's brief, let us see where it leads to. Grant, as is contended, that the contract, "as the parties deliberately chose to make it, must furnish the measure of their rights," still the contract was prepared by the insurance company, and, besides this condition, covers several pages of printed matter, inserted for its own protection and while binding upon both parties, was doubtless not emphasized at the time the insured was being solicited for insurance, and for this reason courts have been liberal in their construction of these contracts, so as to protect the insured and to strictly construe them against the company who prepared them. 8 Michie's Dig. 833, § 44.

In the absence of fraud or mistake, the condition was binding upon the parties; but it is equally true...