Southern Indem. Ass'n v. Hoffman

• Decision Date: 20 November 1917
• Docket Number: 6 Div. 24
• Citation: 77 So. 424,16 Ala.App. 274
• Parties: SOUTHERN INDEMNITY ASS'N v. HOFFMAN.
• Court: Alabama Court of Appeals

77 So. 424

16 Ala.App. 274

SOUTHERN INDEMNITY ASS'N v. HOFFMAN.

6 Div. 24

Court of Appeals of Alabama

November 20, 1917

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

Action by Barbara Hoffman against the Southern Indemnity Association upon an insurance policy. Judgment for plaintiff, and defendant appeals. Affirmed.

The complaint sufficiently appears. Plea 4 sets up in effect that:

The policy contains the following terms and conditions Written notice from the member or his representative and a certificate from the attending physician, each stating the time, place, manner, and nature of injury, sickness, or death, must be received at the home office of the association within ten days after the date of injury, commencement of sickness, or death as conditions precedent to recover. And this defendant avers that after the alleged death of the insured, the said Leo H. Hoffman, it received no written notice from the said Hoffman or his representative, and received no certificate from the attending physician, each stating the time, place, manner, and nature of the injury sickness, or death of the said Leo H. Hoffman.

Plea 5 contains the same terms and conditions as set out in plea 4 and adds that defendant did not receive at its office within ten days after date of the alleged death of the said Leo H Hoffman any written notice from said Hoffman, or his representative, and a certificate from the attending physician, each stating the time, place, manner, and nature of the injury, sickness, or death. Pleas 8, 9, and 12, allege that the policy contained the following provision:

(3) If death shall result from any injury or sickness for which this association may be liable, independently of all other causes, the association will pay the principal sum as defined by this policy to the person named as beneficiary if the death of the member shall occur while this policy is in full force and effect.

Plea 8 alleges that the death did not result in any injury or sickness for which the association may be liable independently of all other causes. Plea 9 alleges that the death did not occur while the policy was in full force and effect. Plea 12 alleges that defendant did not receive through its secretary or at its home office direct and affirmative final proof of the death of said Leo H. Hoffman. The substance of the replications sufficiently appear.

Coleman & Coleman, of Birmingham, for appellant.

Davis & Davis, of Birmingham, for appellee.

SAMFORD J.

The first count of the complaint is in the following words:

"The plaintiff claims of the defendant the sum of, to wit, $150, with interest thereon, upon a policy of insurance whereby the defendant on, to wit, the 14th day of September, 1908, insured for the term of, to wit, his natural life, Leo H. Hoffman, who died on, to wit, the 16th day of August, 1912, of which the defendant has had notice. Said policy is the property of the plaintiff."

This count was evidently intended to follow the Code form, but it failed to do so, in that it fails to allege against what risk the defendant insured. This omission rendered the count defective, and subject to demurrer (Code 1907, § 5382, form 12) but no ground of demurrer is assigned raising this point, and the grounds of demurrer assigned are not well taken.

The third count of the complaint (there was no second count) is in the following words:

"The plaintiff claims of the defendant $150, with interest thereon, due on a policy of insurance, a copy of which is hereto attached and made a part of this count, issued by defendant on, to wit, the 17th day of October, 1908, to the insured L.H. Hoffman, by the terms of which defendant promised and agreed in case of death of insured, L.H. Hoffman, caused, independent of all other causes, solely through external violent and accidental means to pay said amount; and plaintiff avers that the death of the said L.H. Hoffman was caused independent of all other causes, solely through external, violent, and accidental means; that insured has complied with the terms of said policy on his part; that said L.H. Hoffman died on, to wit, August 16, 1912. Said policy is the property of the plaintiff."

The copy of the policy referred to in the count is not set out in the record. This count was demurred to, but, in the absence of the copy of the policy referred to, this count cannot pass upon the demurrer. McAllister-Coman Co. v. Matthews, 167 Ala. 361, 52 So. 416, 140 Am.St.Rep. 43.

The sustaining of demurrers to pleas 4 and 5 was rendered harmless by the overruling of demurrers to pleas 10 and 11, under which latter pleas the defendant had the benefit of everything it could have had under pleas 4 and 5. Manhattan Life Ins. Co. v. Verneuille, 156 Ala. 597, 47 So. 72.

The overruling of demurrers to pleas 8, 9, and 12, if error, was without injury, as, under the averments in this complaint, all matters of defense alleged in said pleas could have been and were introduced in evidence under the plea of the general issue, and, besides, plea 12 was bad and subject to the demurrer, because it is not alleged in the plea that the provisions of the policy made the giving of the proof required by the policy a condition precedent to plaintiff's right of recovery.

Replications 2, 3, and 4, in reply to those pleas alleging a forfeiture of the policy on account of a failure to...