National Life & Accident Ins. Co. v. Edwards

• Decision Date: 24 March 1932
• Docket Number: 8 Div. 384.
• Citation: 224 Ala. 698,141 So. 668
• Court: Alabama Supreme Court
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. EDWARDS.

141 So. 668

224 Ala. 698

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

8 Div. 384.

Supreme Court of Alabama

March 24, 1932

Rehearing Denied May 26, 1932.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Action on a policy of life insurance by Harriett Edwards against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Lynne &amp Lynne, of Decatur, for appellant.

W. H Long, of Decatur, for appellee.

KNIGHT J.

Suit upon a policy of insurance issued by appellant on the life of Ben Sykes. The policy is dated January 6, 1930. From a judgment for plaintiff, the present appeal is prosecuted.

The first two errors assigned present for review here the propriety of the court's action in sustaining plaintiff's demurrer to pleas 2 and 3.

It is averred in these two pleas that the insured in his application for the insurance falsely represented to the defendant that he was in good health, whereas, the pleas aver he was not in good health, but was afflicted with tuberculosis, and with which disease he subsequently died. The pleas further aver that the defendant had paid the plaintiff the full amount of premiums paid to it by the insured on said policy. Plea 2 concluded with the following averment, "and said false representation so made (we presume the pleader intended to say the matter misrepresented) by the insured as aforesaid increased the risk of loss under said policy." The third plea concluded, "said false representations so made by the insured as aforesaid were made with the actual intent to deceive, and did deceive the defendant."

It is not averred that the representation as to the health of the insured was "incorporated in the body of the policy," or in some other paper adopted by reference therein as a part of the policy. The representation set up to defeat recovery was, therefore, not a warranty, and the sufficiency of the pleas is governed by the principles applicable to cases of deceit, and must allege, not only the "falsity and materiality of the matter," but also that it was relied upon as true by the defendant. Pleas 2 and 3, in failing to allege that the misrepresentation as to the health of the insured was relied upon as true by the defendant, were subject to plaintiff's demurrer. In sustaining the demurrer the court committed no error. Empire Life Ins. Co. v. Gee, 171 Ala. 435, 55 So 166; Sov. Camp, W. O. W., v. Hutchinson, 214 Ala. 540, 108 So. 520.

Appellant's assignments of error 3, 4, 5, 6, and 7 present for review the action of the court in overruling defendant's demurrer to plaintiff's replication 8. Those rulings of the court are of no moment on this appeal, as the court, upon written request of defendant, charged out this replication, by instructing the jury that if they believed the evidence, they could not find for the plaintiff under replication 8.

Appellant's eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth assignments of error relate to, and present for review, the ruling of the court on the demurrer of defendant to plaintiff's replication No. 9, as amended. This replication, as amended, is: "The release relied upon by the defendant, alleged in said pleas, was procured by the defendant upon false representations made by its agent at that time acting within the line and scope of his authority, which false representations were that the deceased insured named in the policy sued on had tuberculosis at the time of the issuance and delivery of said policy and that plaintiff could not recover on the policy sued on, and plaintiff relied and acted upon said representations which were false and fraudulently made to her by the defendant's said agent and executed to the defendant the release set out in said pleas, and plaintiff says that she offered to return to defendant the amount of money paid her for said release and defendant refused to accept same; that plaintiff's said offered [offer] to return the amount of money paid her for said release, was made to defendant immediately after the discovery of the alleged fraud set up in said replication. And said agents while acting within the line and scope of their employment falsely and fraudulently represented to plaintiff that the deceased insured named in the policy sued on had tuberculosis at the time of the making of the application for insurance with the defendant company and that plaintiff could not recover on the policy sued on; and plaintiff relied upon said representations which were false and fraudulently made to her by the defendant's said agent and executed to the defendant the release set up in said plea."

The defendant attacked the sufficiency of the replication upon a number of grounds, the principal grounds argued in brief being directed to the failure of the replication to aver that the plaintiff kept her tender good by bringing into court the money tendered; and second, "that having executed the release, and having received a sum of money in satisfaction of her demand, a subsequent offer of that sum to an agent of the defendant would not destroy the contract of release, fully executed by payment and receipt of the money and signed by her."

In support of appellant's contention that the replication was insufficient in the particulars pointed out by the demurrer, we are cited to the case of Rabitte v. Ala. Gr. So. Rwy. Co., 158 Ala. 431, 47 So. 573, 574, and to section 9473 of the Code.

The replication filed in the Rabitte Case, supra, did not aver that the plaintiff, who sought to rescind the contract, had returned, or offered to return, the amount paid her by the railroad company in...