National Life & Accident Ins. Co. v. McGhee, 6 Div. 525.
Decision Date | 12 October 1939 |
Docket Number | 6 Div. 525. |
Citation | 191 So. 884,238 Ala. 471 |
Parties | NATIONAL LIFE & ACCIDENT INS. CO. v. MCGHEE. |
Court | Alabama Supreme Court |
Rehearing Denied Nov. 9, 1939.
Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.
Action on contracts of insurance by Emma McGhee against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.
Affirmed.
McEniry & McEniry, of Bessemer, for appellant.
Ross Bumgardner, Ross & Ross, of Bessemer, for appellee.
The suit was in two counts based on separate insurance contracts. Count 1 declared upon an alleged renewal of accident contract of insurance on application of insured for loss alleged to be due directly and independently of all causes from a bodily injury which was sustained while, it is alleged, said policy was in force; and which was affected accidently and through external and violent means, which resulted in death within ninety days from the date of said accident.
Count 2 was upon a contract based on an application for life insurance with benefits amounting to four hundred dollars in event of death and a binder receipt providing that the benefits in effect in event of death before delivery of policy should be paid after application had been approved in the home office.
The verdict was for plaintiff for amounts sued for under both counts of the complaint.
The case, under respective policies, is thus stated by appellee:
The appellant issued its accident policy to one Senior McGhee deceased bearing date of February 22, 1937, for the sum of $175, being policy No. 16109245. There is some evidence though disputed by the appellee, that this policy lapsed for nonpayment of premiums on September 27, 1937. On November 20, 1937, Senior McGhee paid to the appellant $2.24 and made application for revival of this policy and was given a revival receipt on the regular form of the company. "The $2.24 was arrived at as follows: 5 weekly premiums at 35 cents or $1.75 to November 1, 1937, 20 per cent of two succeeding 35 cent premiums or 14 cents, and the next premium in full, totaling $2.24 and paying the premiums on this policy to November 22, 1937." This amount was paid to the appellant's agent P. P. Herring and P. P. Herring gave the insured the company's official revival receipt as follows:
On this same date, November 20, 1937, Mr. Herring took Senior McGhee's application for a policy of life insurance in the sum of $400 and issued the Company's receipt therefor, in consideration of the further sum of eighty cents paid to him, as follows:
The evidence shows that on November 20, 1937 (Saturday), Mr. Herring took Senior McGhee's application; that on the following Wednesday Senior McGhee left his home in Jefferson County, stating that he was going to Georgia for a hunting trip over Thanksgiving and November 24, 1937, was the last day that the appellee, who is his wife, saw him alive. Thanksgiving day in 1937 was on November 25th, and, as usual, was on a Thursday. The appellee next saw her husband on November 27, 1937, and he was then dead, and when she saw him on the 27th some men were bringing him out of the creek near their home.
Mr. Herring testified that he received notice after Senior McGhee's death that the accident policy for $175 was revived. As to this the agent testified as follows:
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