National Life & Accident Ins. Co. v. Moore

• Decision Date: 13 October 1927
• Docket Number: 3 Div. 797
• Citation: 216 Ala. 554,114 So. 45
• Court: Alabama Supreme Court
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. MOORE.

114 So. 45

216 Ala. 554

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

3 Div. 797

Supreme Court of Alabama

October 13, 1927

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

Action on a policy of life insurance by Joe Moore against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under Code 1923, § 7326. Reversed, rendered, and remanded.

John S Tilley, of Montgomery, for appellant.

Ludlow Elmore and Richard T. Rives, both of Montgomery, for appellee.

SOMERVILLE J.

The action is on a policy of life insurance, and the complaint which follows the new Code form (Code 1923, § 9531, form 12) is not subject to any ground of demurrer. The cases cited by counsel for appellant related to the form provided by older Codes, and are not now applicable.

The defendant's demurrer to plaintiff's replication to the special pleas was unquestionably well taken and should have been sustained. This replication is in confession and avoidance of pleas setting up plaintiff's failure to make proof of death as required by the terms of the policy. It avers that defendant waived such proof because "an agent of defendant company," to whom plaintiff reported the death of the insured, informed plaintiff that defendant "would not pay said policy of insurance, and denied liability thereunder." This was not sufficient to show that the company was bound by the act of the agent without the further allegation that the agent was duly authorized thereto; that is, that he was, as to the act imputed to him, acting within the scope of his authority. Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 383, 96 So. 250; Ala. State Mut. Assur. Co. v. Long C. & S. Co., 123 Ala. 667, 677, 26 So. 655.

A further ground for the asserted waiver is that the defendant, after notice of death, and a request by plaintiff for blanks, failed to furnish him, within a reasonable time, any blanks or forms for proof of death. This part of the replication was also subject to apt grounds of demurrer interposed, in that it does not plead any provision of the policy making such a requirement, and hence does not show any duty resting on defendant in the premises, and in that the allegation as to reasonable time is a conclusion merely. St. Louis, etc., R. Co. v. Jamar, 182 Ala. 554, 62 So. 701; Mauldin v. Central, etc., R. Co., 181 Ala. 591, 61 So. 947.

It is however, insisted for the plaintiff that, even if the demurrer was erroneously overruled, the defects of allegation were supplied by actual evidence, and the proper issues were submitted to the jury by appropriate instructions; and, hence that under our decisions the error was not prejudicial to the defendant. An examination of the record confirms the validity of this contention, and we think it clear that...