National Life & Accident Ins. Co. v. Hannon

• Citation: 212 Ala. 184,101 So. 892
• Decision Date: 23 October 1924
• Docket Number: 3 Div. 679.
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. HANNON.
• Court: Supreme Court of Alabama

101 So. 892

212 Ala. 184

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

3 Div. 679.

Supreme Court of Alabama

October 23, 1924

Rehearing Denied Nov. 27, 1924.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action on policy of life insurance by Sallie Hannon against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.

John S Tilley, of Montgomery, for appellant.

L. A Sanderson and Thos. B. Hill, Jr., both of Montgomery, for appellee.

THOMAS J.

The suit is upon a policy of life insurance.

There was demurrer to the complaint. The Code form for the complaint requires that the period covered by the policy and the date of the death be averred, in order that the pleading may show whether or not death occurred pending the life of the policy. Pence v. Mutual Ben. L. Ins. Co., 180 Ala. 584, 61 So. 817; Eminent Household Columbian Woodmen v. Gallant, 194 Ala. 681, 69 So. 884; Sov. Camp W. O. W. v. Ward, 196 Ala. 327, 71 So. 404; Locomotive Eng., etc., Ass'n v. Hughes, 201 Ala. 58, 77 So. 352.

In Ex parte Comm. Life Ins. Co., 204 Ala. 561, 86 So. 522, and National Casualty Co. v. McCarn, 207 Ala. 322, 93 So. 31, the counts, held substantial compliance with Code form, contained averments that the insurance was for the term indicated and from year to year thereafter, "as the premiums were paid"; that at the time of the death of assured the premium on said policy had been paid or duly tendered, "and the said policy was in force and effect." Travelers' Ins. Co. v. Whitman, 202 Ala. 388, 80 So. 470; Woodmen v. Alford, 206 Ala. 20, 89 So. 528. In the present case count 1 contained no sufficient averment of facts to show that the policy declared upon was in full force and effect at the time of the death of assured. That count was subject to the appropriate ground of demurrer directed thereto.

Count 2 was sufficient against the ground of demurrer assigned. The averments thereof were of facts and not mere conclusions of the pleader. Because of the sufficiency of the second count, the overruling of demurrer to count 1 was error without injury. The proof required under each count was the same. That is to say, the averments of facts contained in count 2 embraced the conclusions averred in count 1. There was no reversible error in rulings on demurrer to the complaint. Gulf States Steel Co. v. Carpenter, 205 Ala. 162, 87 So. 580.

Replication 2 required a materially different degree of proof than did replication 4. The rule is that in order to render an injury unintentional and accidental under policies of accident insurance by reason of the insanity of the person who inflicted the injury, there must be such a diseased and deranged condition of the mind as to render the person incapable of distinguishing right from wrong in relation to the particular act with which he is charged. 4 Cooley's Briefs, Ins. p. 3211; 1 C.J. 443; Travelers' Ins. Co. v. Houston, 3 Willson, Civ. Cas. Ct. App. § 429. The test is the same as in criminal cases. Marceau v. Travelers' Ins. Co., 101 Cal. 338, 35 P. 856, 36 P. 813. This is stated in Anderson v. State, 209 Ala. 36, 95 So. 171; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193.

Appellee cites general authorities, including Marceau v. Travelers' Ins. Co., 101 Cal. 338, 35 P. 856, 36 P. 813, and two cases from this jurisdiction viz.: Gulf States Steel Co. v. Carpenter, 205 Ala. 167, 87 So. 580 (suit for injuries inflicted while in service of master), and Travelers' Ins. Co. v. Dupree, 17 Ala. App. 131, 82 So. 579 (an unprovoked assault), which are inapt.

The provisions of the policy sued on, among others, are:

"This policy does not cover suicide (sane or insane) nor any venereal disease; nor any disease not common to both sexes; nor æronautics; nor military or naval service in time of war; nor injuries intentionally inflicted upon the assured by himself or by any other person except by burglars or robbers; nor the assured while in the tropics or any part of Alaska or the British possessions in North America, north of the sixtieth degree of north latitude, and there shall be no liability whatever against the company in any such cases."

Plea 1 sets out said provision of the policy, and avers:

"Defendant says that said Hannon was intentionally shot by one Hazzard who was at the time of said shooting neither a burglar nor a robber, and that said Hannon died from said injury on the day on which said shooting occurred. Wherefore defendant says

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