Pilot Life Ins. Co. of Greensboro, N.C., v. Hawkins, 6 Div. 717.

• Decision Date: 15 January 1931
• Docket Number: 6 Div. 717.
• Citation: 222 Ala. 218,131 So. 889
• Parties: PILOT LIFE INS. CO. OF GREENSBORO, N. C., v. HAWKINS.
• Court: Alabama Supreme Court

131 So. 889

222 Ala. 218

PILOT LIFE INS. CO. OF GREENSBORO, N. C., v. HAWKINS.

6 Div. 717.

Supreme Court of Alabama

January 15, 1931

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action on a policy of accident insurance by Lucile Hawkins against the Pilot Life Insurance Company of Greensboro, N. C. From a judgment for plaintiff, defendant appeals.

Affirmed.

H. H Grooms and Coleman, Coleman, Spain & Stewart, all of Birmingham, for appellant.

Crampton Harris and Frank W. Smith, both of Birmingham, for appellee.

THOMAS J.

The suit was upon a policy of insurance that was for a term of one year from January 26, 1927, and provided for extension from year to year for the same premium. The verdict was for plaintiff, and questions now assigned were embraced in motion for new trial that was overruled.

The question at issue arose from the contention of defendant that the policy was not of force for failure of payment of premium due January, 1928. The controverted question of fact was the payment vel non of the January installment of premium of $10.

The defendant's answers to interrogatories denied that the premium for January, 1927, and that for January, 1928, had been paid. Its agent on the trial admitted that on January 26, 1927, assured paid the premiums due, and by such agent he was given the company's receipt that was in evidence; and that such fact and payment were duly reported by said general agent to defendant company.

The insistence was first made that, if mistaken in fact, the first premium was not paid; that "this policy was never in full force and effect for the reason that no part of the premium has ever been paid on the policy"; that the "policy was never cancelled for the reason that there was nothing to cancel. The policy was never in force and effect." And thereafter at the trial the insistence of nonliability was nonpayment of the second premium due in January, 1928. There was offered in evidence a check for $10 dated March 24, 1928, and returned by the bank after the death of deceased with the notation thereon "account closed"; the assured was killed on March 25, 1928. There was evidence that on the last-stated date there were not sufficient funds in the bank to pay the check. As to the real effect and purpose of the deceased and payee of the check, it was contended by plaintiff that said check was not for premiums on the policy, but was for an individual transaction between the parties; that said premium was paid in January theretofore and evidenced by the company's receipt to that effect, which receipt is before us. The contention of defendant was that it was for the belated payment of the January premium.

Plaintiff testified that she received that receipt, in January, 1928 from the husband-assured, and that he came to his death by accident in March. The witness, theretofore defendant's general agent, testified that the receipt was not delivered until in March "on the acceptance of the cash or check which I (he) would consider the same as cash." The check was cashed by the payee at "Lonto's Café, Gulas Bros."

The direct conflicts in evidence and reasonable tendencies thereof made a jury question. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.

The learned trial court so ruled, and properly instructed the jury without exception being reserved to the statement that "the question has boiled down *** to whether or not this colored Doctor *** paid that premium or whether he did not."

To advert to the evidence, it will be noted there is an admission against interest by the defendant in the home office's letter in evidence of date of May 4, 1928. If this premium had not been paid within the period of grace, it is insisted that the company would not have considered assured a policyholder, and would not have advised of the termination of its contract or general agency with the agent named, and advised that all payments thereafter be made direct to the general office. In the admission of that letter in evidence, as a tendency of admission against interest and as illustrating its former relations with that agent, there was no error. It will be unnecessary to detail the testimony of said former agent as a witness, or that of plaintiff. It was the subject of consideration by the jury having the witness before them.

It is established that receipts for money are prima facie evidence of payment, and may be explained or denied, Code, § 7660; Wye Shipping Co., Ltd., v. Hunter, Benn & Co., 211 Ala. 326, 100 So. 475; Gravlee v. Lamkin, 120 Ala 210, 24 So. 756; that the insurer has the burden of showing nonpayment of subsequent premiums after issue and delivery of policy, and the introduction of the policy makes out a prima facie case, Commonwealth Life Ins. Co. v. Barr, 218 Ala. 505, 119 So. 11. The evidence presented a conflict. Jones v. Bell, 201 Ala. 336, 77 So. 998. The previous receipts are in evidence; the burden of proof of going forward was upon defendant.

The authority of agent Hawkins being in parol so far as...