National Life & Accident Ins. Co. v. Winbush

• Decision Date: 16 December 1926
• Docket Number: 6 Div. 740
• Citation: 215 Ala. 349,110 So. 571
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. WINBUSH.
• Court: Alabama Supreme Court

110 So. 571

215 Ala. 349

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

6 Div. 740

Supreme Court of Alabama

December 16, 1926

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action by Lee Winbush against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Bankhead & Bankhead and A.F. Fite, all of Jasper, for appellant.

Curtis Pennington & Pou, of Jasper, for appellee.

THOMAS J.

We have examined the several demurrers directed to pleas and find no reversible error. If there be technical error in ruling on plea 7, its comparison with plea 3, to which demurrer was overruled, indicates that no error was committed in sustaining demurrer to plea 7. Mut. Life Ins. Co. v Witte, 190 Ala. 327, 67 So. 263; Mass. Mut. Life Ins. Co. v. Crenshaw, 195 Ala. 263, 70 So. 768. The latter was no broader than plea 3 and presented the same defense.

Demurrers were sustained to pleas 9 and 10. The provisions of the contract as to good or sound health are within the power of contract of the parties. 37 C.J. p. 404; Gallant v. Metropolitan Life Ins. Co., 167 Mass. 79, 44 N.E. 1074; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175. However, the plea of avoidance thereunder was not sufficient to fairly apprise the adverse party of the contemplated or real defense, or not so distinctly stated as to be understood by the other party, respective counsel, the court, and the jury. 2 Cooley's Briefs, 1178; Empire Ins. Co. v. Gee, 171 Ala. 435, 441, 55 So. 166; Mutual Life Ins. Co. v. Witte, 190 Ala. 327, 330, 67 So. 263; Mutual Ins. Co. v. Allen, 174 Ala. 511, 517, 56 So. 568. This is in accord with the distinction in pleading between the required averments of a complaint and a plea. Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933.

The contract in evidence is presumed to have been duly executed by defendant in the absence of a sworn plea of non est factum. Endowment Dept., etc., v. Harvey, 6 Ala.App. 239, 60 So. 602.

The trial court could not properly have done otherwise than give the general affirmative charge duly requested by the plaintiff in this case. The defendant does not deny that the evidence received made a prima facie case for the plaintiff. That it did is in accord with established law. Plaintiff, to establish a prima facie case, must prove: (1) The existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy; and (3) the giving of notice and proof of death, as required by the policy. On the other hand, the burden is on the company to show a violation of conditions avoiding an otherwise valid policy. The plaintiff's proof met all these requirements. It established for him a prima facie case, and, if the jury believed his evidence, there was no verdict th...