Prudential Ins. Co. v. Calvin

• Decision Date: 16 March 1933
• Docket Number: 6 Div. 219.
• Citation: 227 Ala. 146,148 So. 837
• Parties: PRUDENTIAL INS. CO. v. CALVIN.
• Court: Alabama Supreme Court

148 So. 837

227 Ala. 146

PRUDENTIAL INS. CO. v. CALVIN.

6 Div. 219.

Supreme Court of Alabama

March 16, 1933

Rehearing Denied April 13, 1933.

Further Rehearing Denied June 22, 1933.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action on a policy of life insurance by Janice J. Calvin against the Prudential Insurance Company of America. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Harsh Harsh & Hare, of Birmingham, for appellant.

Taylor & Higgins and Chas. W. Greer, all of Birmingham, for appellee.

KNIGHT Justice.

Plaintiff's husband, Paul T. Calvin, was an employee of the Louisville &amp Nashville Railroad Company, in the capacity of telephone lineman; and he was so employed at the time it is alleged he received his fatal accident.

This action was brought by the plaintiff to recover of the appellant the sum of $1,000, with the interest thereon, under the terms of what is called a group policy of insurance written for the Louisville & Nashville Railroad Company by the appellant, covering its employees, and a certificate of insurance was duly issued to the said Paul T. Calvin, naming the plaintiff as the beneficiary. This policy was in force on November 16, 1930, the day it is alleged the insured received a fatal injury, and also up to the time of his death, which occurred on November 22d, 1930.

For death from natural causes, the policy provided that the insurer would pay to the named beneficiary the sum of $3,000. This amount was duly paid to the beneficiary. However, the insistence is made by Mrs. Calvin, and that insistence is reflected in this suit, that under the accident death benefit provision in said policy she was entitled to the payment of the further sum of $1,000. This the company denied, and hence the present suit.

The provision of the policy with reference to the payment of accidental death benefit is as follows: "In addition to the insurance on the life of any employee insured under this policy, and in consideration of the payment of the premium as hereinafter provided, the company will pay at its home office as an accidental death benefit, one thousand dollars immediately upon receipt of due proof that the death of such employee occurred while such employee was in the employ of the employer and insured under this policy, as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days of the accident, provided, however, that no accidental death benefit shall be payable if such death resulted from suicide-whether sane or insane; from having been engaged in aviation or submarine operations or in military or naval service in time of war; or from a state of war, riot or insurrection; or directly or indirectly from bodily or mental infirmity or disease in any form."

The case was tried on count 5 added by amendment. There was a demurrer to this count, as well as to the other counts of the complaint. All counts, except count 5, went out on demurrer, but the demurrer to count 5 was overruled. The policy of insurance was made a part of count 5, and fully set out therein. Two objections to the sufficiency of this count are presented in argument, and earnestly pressed upon our attention: (a) There is no averment in the count that due proof had been furnished the defendant that the death of said Paul T. Calvin was accidental under the terms of the policy, as required by the provisions of the policy; and (b) that notice of the death is not the equivalent that death occurred accidentally. The latter proposition, however, as we see it is not in fact presented or raised by any specific ground of demurrer.

The count avers that notice "as required by law of the death of the said Paul T. Calvin had been given the defendant."

It is earnestly insisted that the furnishing to defendant of due proof that the death of said Paul T. Calvin was accidental under the terms of the policy was a condition precedent to the right of recovery in this action. Counsel, in arguing this point, bring to our attention the cases of Fire Ins. Cos. v. Felrath, 77 Ala. 195, 54 Am. Rep. 58, and Protective Life Ins. Co. v. Swink, 222 Ala. 496, 132 So. 728, as well as authorities elsewhere. No such question was presented in the Swink Case, supra. That case only held that the burden of proof that the insured's death was accidental within the terms of the policy was upon the plaintiff throughout the case. In the Felrath Case, supra, the failure to furnish proper proof of loss was raised by special pleas, and not by demurrer to the complaint.

In our recent case of New York Life Ins. Co. v. Turner, 213 Ala. 286, 104 So. 643, it was held that, if the defense to the action is predicated upon a failure or refusal to furnish proof in form or substance as provided in the policy contract, such defense must be asserted by special plea. This holding in the Turner Case, supra, is supported by the pronouncement of this court in the case of Manhattan Life Ins. Co. v. Verneuille, 156 Ala. 592, 47 So. 72.

Learned counsel for appellant seems to recognize that the cases last above cited are against his contention, but endeavors to show that, in reaching the conclusion that the defense must be asserted by special plea, this court did not make "a careful examination of the authorities," or that it did not appear in those cases that furnishing "proof of loss" was a condition precedent to liability in the present case. Liability is present, but payment in extinguishment of liability is only deferred until proper proof is furnished. If suit is prematurely brought, that is, if the cause of action existed, but suit is brought before the required notice is given, that defect does not go to the destruction of the cause of action, but only to the postponement of the action thereon. Hence, if prematurely brought, that fact must be presented by plea-one in abatement of the action. Westchester Ins. Co. v. Green, 223 Ala. 121, 134 So. 881; Home Ins. Co. of N.Y. v. Murphy, 223 Ala. 566, 137 So. 393. No plea in abatement was filed. We therefore hold that the demurrer, as for any grounds interposed, and here argued, was properly overruled.

With its demurrer overruled, the defendant pleaded in short by consent the general issue, "with leave to give in evidence any matter which if well pleaded, would be admissible in defense of the action," etc.

After the jury had been selected and impaneled, the plaintiff's counsel undertook to make an opening statement to the jury in which he made the following statement: "Now, may it please your honor, and you, gentlemen of the jury, in reply to what he said (referring to counsel for defendant), we expect the evidence to show you instead of what Mr. Harsh said that this man, in a dying condition, at the telephone post, made the statement * * * the first man that got there was Chief Clem, Chief of the Fire Department of Fairfield, and he told him 'There was that wire, which is heavily charged; don't go close to it, because I am dying now, I am in a dying condition, and it knocked me off, it struck me on the back of the hand and knocked me off the post.' We expect the evidence to show you Chief Clem of the Fire Department will swear to that on the witness stand, this man's statement that he was injured in that manner. There was one white man and two negroes that perhaps saw him get the shock, but this was the first man that talked to him about the injury, Chief Clem, and chief authority, of the Fire Department, and Bob Grant, of the Fire Department, and that he, there, explained to him the details of the injury, right then and there." The defendant objected to the foregoing statement, the court overruled the objection, and the defendant duly excepted.

Of course, within proper bounds, counsel have the right, in putting their case to the jury, to state to the jury their theories of the case and what they, in good faith, expect the evidence to show. Atlanta Life Ins. Co. v. Canady (Ala. Sup.) 143 So. 561; 38 Cyc. 1475; O'Connell v. Dow, 182 Mass. 541, 66 N.E. 788; Sinclair Co. v. Waddill, 200 Ill. 17, 65 N.E. 437.

The statement does not show that the facts proposed to be proved were of the res gestæ, and was therefore improper.

It is next insisted that the court committed reversible error in admitting, over defendant's timely objection, the paper purporting on its face to be "the death certificate" of Paul T. Calvin. This certificate was issued and signed by J. D. Dowling, M. D., Registrar, and beneath the word "Registrar" appear the capital letters B. R. This certificate is headed: "Jefferson County Board of Health, Birmingham, Alabama, Bureau of Records and Vital Statistics." Transcript of the record of death, Birmingham, Ala., June 15, 1932.

This court will take judicial knowledge of the fact that Dr. Dowling was health officer of Jefferson county on June 15, 1932, and that certificate in question was issued by him as the registrar.

It is insisted that the certificates of births and deaths must be obtained from the state registrar, under the provisions of section 1087 of the Code (as amended by Gen. Acts 1927, p 780). Of course, the state registrar may issue certificates of births and deaths, but he is not the only officer that has such authority. We are fully persuaded that under section 7674 of the Code Dr. Dowling was authorized to make and furnish the certificate, and that the same, as for any grounds of objection urged thereto, was properly admitted in evidence. Code, § 7674; Hawes v. State, ...