Reliance Life Ins. Co. v. Russell, 7 Div. 235.

• Court: Supreme Court of Alabama
• Writing for the Court: McCLELLAN, J. McCLELLAN, J.
• Citation: 94 So. 748,208 Ala. 559
• Parties: RELIANCE LIFE INS. CO. v. RUSSELL.
• Decision Date: 02 November 1922
• Docket Number: 7 Div. 235.

94 So. 748

208 Ala. 559

RELIANCE LIFE INS. CO.
v.
RUSSELL.

7 Div. 235.

Supreme Court of Alabama

November 2, 1922

Rehearing Denied Dec. 7, 1922.

Appeal from Circuit Court, Talladega County; S.W. Tate, Judge.

Action by Mamie A. Russell against the Reliance Life Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The sole means by which advantage of variance may be taken is to object to the evidence whereby it would be introduced. [94 So. 749]

The action is by appellee against appellant upon a life insurance policy belonging to plaintiff, the wife of James B. Russell, who died December 26, 1920. The policy was issued, to wit, August 31, 1920. In addition to general traverse of the single count in the complaint, the defendant filed a number of special pleas; among them pleas 6, 7, 8, and 9, to which plaintiff's demurrers were sustained. These pleas read:

"(6) For further plea, the defendant says that said policy was issued upon an application signed by the said James B Russell, seeking the issuance of said policy, but that at the time that the said Russell applied therefor he understood that he was applying, not to this defendant, but to the New England Mutual Life Insurance Company of Boston Mass., and not until the said policy was issued and received by the said Russell by mail did he discover that it was issued by this company, and not by the said New England Mutual Life Insurance Company; and that the said James B. Russell did not want a policy of insurance in the defendant's company, but wanted one in the said New England Mutual Life Insurance Company, and after its receipt through the mails, as aforesaid, the said Russell returned the said policy, stating he did not want the same and would not pay therefor

"(7) For further plea, the defendant refers to and adopts as a part hereof all the allegations and averments of plea 6 herein contained, and adds thereto as a part thereof the following words of averment: That said policy was in due course returned to this defendant, marked and indorsed 'Not taken,' December 21, 1920.

"(8) For further plea, the defendant says [94 So. 750] that the policy sued on in this case incorporated therein as a part thereof the application made for such insurance policy which was signed by the said James B. Russell and at the time he so signed the same the said James B. Russell did not desire or intend to apply for insurance in this company, but intended to make said application to the New England Mutual Life Insurance Company, and after the issue of the policy sued on and its delivery to the said Russell he ascertained that such policy had been issued by this defendant company, and not by the said New England Life Insurance Company, and thereupon the said Russell returned the policy sued on, and informed this defendant or the defendant's agent that he did not want and would not pay for the policy so issued by this defendant.

"(9) The defendant refers to and adopts as a part of this plea all the allegations of plea 8 hereinabove, and adds thereto as a part thereof the following words of averment: 'And said policy was in due course returned to the defendant, and by this defendant indorsed and marked "not taken," on, to wit, December 21, 1920, and prior to the death of the said James B. Russell on, to wit, December 26, 1920."'

With other general and special replications to pleas 1 to 5, inclusive, plaintiff interposed amended replication 13 to special plea 3. This plea (3) reads:

"The policy of insurance sued on provides in express terms that the same was based upon the application therefor, a copy of which is attached and made a part of the contract of insurance, and the said policy is also based upon the annual premium of $47.46 and the payment of the first annual premium; that the application for said policy so incorporated therein and made a part thereof, and which was signed by the said James B. Russell, contained, among other things, an agreement by the said Russell that the said policy so applied for should not take effect until the first premium shall have been actually paid, and further showed that he paid to one C. E. Shannon, agent, the sum of $47.46 in a certain note, and in said policy it is expressly provided as follows:

"'All premiums are payable in advance at said home office, or to an agent of the company upon delivery of a receipt signed by the president or secretary of the company and countersigned by said agent. A grace of one month or thirty-one days, subject to an interest charge at the rate of five per cent. per annum shall be granted for the payment of every premium after the first, during which period the insurance shall continue in force. If the insured shall die during the days of grace the overdue premium will be deducted from the amount payable thereon in any settlement hereunder. Except as herein provided the payment of a premium or installment thereof shall not maintain the policy in force beyond the date when the next premium or installment thereof is payable, if any premium or installment thereof be not paid before the end of the period of grace, then this policy shall immediately cease and become void and all premiums previously paid shall be forfeited to the company, except as provided in the Options on Surrender or Lapse.'

"And this defendant avers that neither said premium nor any part thereof has been paid, but that the said note so given therefor to the said Shannon became due and payable on, to wit, December 15, 1920, but the same was not paid when due, nor was the same paid prior to the death of the said James B. Russell on, to wit, December 26, 1920."

Amended replication 13 to plea 3 reads:

"Plaintiff avers that C. E. Shannon, at the time of taking said application and the issuance of said policy by the defendant company, was the agent of said company, with authority to solicit said application and deliver the policy and receive the payment therefor, and that acting within the scope and line of his authority the said C. E. Shannon accepted the certain note of the said James B. Russell due on, to wit, the 15th day of December, 1920, referred to in said plea, in payment of the said first premium, and delivered said policy to the said James B. Russell, and that the said James B. Russell received said policy and accepted the same, and that said policy was in full force and effect at the time of the death of the said James B. Russell."

The defendant's demurrer to this amended replication was overruled. The objections taken to the amended replication by the demurrer and supported in the brief are indicated in the opinion.

The court refused defendant's special request for instruction C, reading:

"The court charges the jury that the original complaint in this cause alleges that the defendant insured the life of James B. Russell for the term of, to wit, his natural life. The only policy of insurance introduced in evidence in this case shows that the policy was not for the term of his natural life, but was for the term of one year from the date thereof, and your verdict must be for the defendant."

The plaintiff was accorded judgment for the full amount of the policy, with interest.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, and Harrison & Stringer, of Talladega, for appellant.

Knox, Acker, Dixon & Sims, of Talladega, for appellee.

McCLELLAN, J.

With reference to the action of the court is sustaining demurrers to special pleas 6, 7, 8, and 9, it will suffice to say that the benefit of the theory of substantial defense (unless avoided by appropriate replication) illustrated by these pleas was available to defendant under the averments of plea 5, which reads:

"For further plea, the defendant says that after the execution and delivery of the instrument sued on

the same was canceled by mutual consent of the defendant and the said insured."

As appears the agreement averred in plea 5 was one to which the insured himself was a party. In such circumstances no prejudicial error attended the sustaining of demurrers [94 So. 751] to pleas 6 to 9, inclusive. The allegation in plea 5 of cancellation of the contract "by mutual consent" was the averment of an ultimate fact, not the conclusion of the pleader.

Amended replication 13, to plea 3, appears in the statement ante. This replication averred the authoritative acceptance by the agent, Shannon, of Russell's note (referred to in plea 3) "in...