Pennsylvania Cas. Co. v. Perdue

• Court: Supreme Court of Alabama
• Citation: 51 So. 352,164 Ala. 508
• Parties: PENNSYLVANIA CASUALTY CO. v. PERDUE.
• Decision Date: 13 January 1910

51 So. 352

164 Ala. 508

PENNSYLVANIA CASUALTY CO. v. PERDUE.

Supreme Court of Alabama

January 13, 1910

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

Action by A. B. Perdue, administrator, against the Pennsylvania Casualty Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Cabaniss & Bowie and E. C. Crow, for appellant.

Kerr &amp Haley, for appellee.

SAYRE J.

Suit on a policy of health insurance. Each count of the complaint makes it to appear that the policy provided for indemnity for the period of any disability resulting from sickness from which the insured should necessarily be confined to the house during the term of the policy. The further averment is that plaintiff was ill during a period of 26 weeks, "for which defendant was liable in the sum of $50 per week under the terms of the policy," and more not involved in the question here raised. The Code contains no form for a complaint on a policy of this character. Its sufficiency must therefore be tested by the principles of the common law. There can be no doubt that the defendant was liable under its policy in the event only that the insured was necessarily confined to the house as the result of his sickness. We need not discuss the purpose of that provision of the policy. The parties were free to contract on their own terms, and, having contracted, no reason appears why the plaintiff should not stand or fall as provided in the contract, interpreted according to law and reason. To recover, it was necessary for the plaintiff to prove that he had been necessarily confined to the house as the result of his sickness. Dunning v Mutual Accident Ass'n, 99 Me. 390, 59 A. 535; Bishop v. U.S. Casualty Co., 99 A.D. 530, 91 N.Y.S 176; Shirts v. Ph nix Accident Ass'n, 135 Mich. 439, 97 N.W. 966; Cooper v. Ph nix Accident Ass'n, 141 Mich. 478, 104 N.W. 734; Bradshaw v. American Benefit Ass'n, 112 Mo.App. 435, 87 S.W. 46. It was necessary that the complaint aver the performance of any precedent condition or warranty contained in the policy, and the loss, or happening of the event on which, within the terms and meaning of the policy, the liability of the insurer attached. Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538. As to the point at issue the complaint stated only a bare legal conclusion, rather than facts from which the court on an inspection of the pleading could draw the conclusion that the plaintiff had a just cause of action against the defendant. The demurrer to the complaint should have been sustained.

The complaint averred that plaintiff's sickness and disability began on the 5th day of July, 1905. Plea 7 sets out a provision of the policy in this language: "The company may cancel this policy by mailing notice of cancellation to the assured's address given in the schedule, with its check for the unearned part, if any, of the premium"--and alleges a cancellation on, to wit, the 8th day of July, 1905. It seems obvious that this plea was bad. For one thing, it fails to deny in any form liability for the period from July 5th to July 8th, and so fails to answer the complaint in its entirety, as it professes to do; for another, the interpretation of the contract put forward by this plea is not to be accepted, because, not rendered necessary by the letter, it entirely destroys the spirit of the contract. We think further comment is unnecessary. The demurrer was properly sustained.

When the plaintiff took his policy of insurance he resided at Birmingham, in this state. He left Birmingham for New Mexico on the 12th day of July, 1905. Suit was commenced on August 2, 1906. At the trial, which was had on February 14, 1908 but before entering thereupon, the defendant moved that plaintiff be required to give security for costs as a nonresident, and introduced plaintiff's deposition, taken for use at the trial, to sustain its...