Powell v. Life & Casualty Ins. Co. of Tennessee

• Decision Date: 25 November 1938
• Docket Number: 2 Div. 131.
• Parties: POWELL v. LIFE & CASUALTY INS. CO. OF TENNESSEE.
• Court: Alabama Supreme Court

184 So. 899

237 Ala. 19

POWELL v. LIFE & CASUALTY INS. CO. OF TENNESSEE.

2 Div. 131.

Supreme Court of Alabama

November 25, 1938

Rehearing Denied Dec. 22, 1938.

Appeal from Circuit Court, Dallas County; John Miller, Judge.

Action by W. Erskine Powell against the Life & Casualty Insurance Company of Tennessee for double indemnity benefits for accidental death under a life policy. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

A replication may not assert as answer to defense asserted in plea a new contract or obligation founded on new consideration not declared on in complaint.

Replication 3 alleges that the policy in suit covered life insurance endowment insurance, disability insurance, waiver of premium insurance, and double indemnity insurance for accidental death, all in one and the same policy, for all of which the defendant charged a single premium of $14.57 payable quarterly on the 15th day of February, May, August and November from the date of said policy until the maturity of said policy unless the premium was waived on account of disability; and plaintiff further says that plaintiff's assured, D. C. Powell, became totally disabled, to-wit, two years prior to his death, and that said disability claim of said D. C. Powell was allowed and recognized by the defendant and on, to-wit, the 15th day of November, 1934, "and thereafter, the defendant did from time to time for valuable consideration, to-wit: $3.60, paid by said D. C. Powell to defendant continue in force until and including the day of the death of said D. C. Powell the provisions of said policy obligating the defendant to pay $3000.00 to plaintiff on the accidental death of said D. C. Powell as alleged and described in the complaint."

Replications 4 and 5 further aver that $4.38 of said premium of $14.57 was charged by the defendant and paid by the assured for waiver of premium and disability insurance; that assured paid to defendant all of said installments of $4.38 agreed by him to be paid or charged by defendant or due or owing under the terms of said policy up to and including the date of the death of assured;" and plaintiff further avers that for the consideration of said $4.38 per quarter so paid by D. C Powell the defendant did waive, during disability, the premiums of ninety cents per quarter charged by the defendant and agreed to be paid by D. C. Powell for the obligation of the defendant to pay to the plaintiff herein the sum of $3000.00 upon the accidental death of said D. C. Powell, as alleged and described in the complaint, or for other like accidental death". And plaintiff further avers that assured paid all premiums on said policy for death, disability, waiver of premium and double indemnity, and all other premiums due by or demanded of him until the 15th day of November, 1934, at or prior to which time the assured became and continued to be totally and permanently disabled as defined in said policy, which disability was recognized and accepted by defendant, and all premiums, thereafter due, owing or provided for in said policy were waived by defendant; "and plaintiff avers that under the terms of said policy for the benefit of the defendant the provisions of the policy providing for the payment of double indemnity on accidental death could have been suspended by the defendant, during the total disability of the insured, by returning to the said D. C. Powell the premium charged for double indemnity, or the defendant had the right under said policy to retain the premium for double indemnity and keep said provision in force. The plaintiff avers that the defendant elected voluntarily to keep the double indemnity premium the waiver of which had been paid for by said D. C. Powell and defendant failed to return such premium or to allow credit for same on sums which were paid by D. C. Powell to defendant after his total disability was recognized and agreed to by defendant and existed in fact, as described in said policy, and the said sums so overpaid by D. C. Powell to the defendant during said disability constituted an over payment which formed a consideration for keeping said disability clause in effect; and the defendant did from time to time, at premium payment periods, as provided in the policy, issue receipts or renewal contracts for said consideration which renewal receipts or contracts extended the double indemnity clause in full force and effect until and after the accidental death of D. C. Powell as alleged in the complaint."

Replication 6 further avers that under the provision of the waiver of premium and disability clause of the policy there was no duty on defendant to issue any receipt, but was obligated on the occurrence and proof of disability to endorse on the policy waiver of the premiums and, notwithstanding, defendant misled and deceived assured by issuing to him receipt and renewal contracts and failed to pay him the amount of the double indemnity premium waived by defendant, and by demanding of assured full annual interest on his policy loan without allowing credit for the amount of same in the hands of defendant and by failing to notify assured that defendant claimed the benefit for accidental death was not in force, and by issuing notice demanding payment with the same symbols with the same meaning as contained in said receipts, thereby preventing assured from effecting other accidental death insurance, and causing him to believe such double indemnity clause for accidental death was in force; wherefore defendant has estopped itself from now claiming to the injury of plaintiff that said double indemnity clause is not in force.

Grounds 24, 28, 29, 30, 34 and 38 of the demurrer are to the effect that the matters set up in the foregoing replications are mere conclusions of the pleader.

Pettus & Fuller and Theodore L. Wade, all of Selma, for appellant.

Mallory & Mallory, of Selma, for appellee.

BROWN Justice.

This is an action of assumpsit for the alleged breach of the conditions of the "Double Indemnity Benefit Certificate for...