Sovereign Camp, W.O.W. v. Feltman

• Decision Date: 18 June 1936
• Docket Number: 6 Div. 918
• Citation: 169 So. 9,232 Ala. 570
• Parties: SOVEREIGN CAMP, W.O.W., v. FELTMAN.
• Court: Alabama Supreme Court

169 So. 9

232 Ala. 570

SOVEREIGN CAMP, W.O.W., v. FELTMAN.

6 Div. 918

Supreme Court of Alabama

June 18, 1936

Appeal from Circuit Court, Marion County; Ernest Lacy, Judge.

Action on a policy of life insurance by Mary W. Feltman against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals.

Affirmed.

Ernest Fite, of Hamilton, and Arthur F. Fite, of Jasper, for appellant.

Wm. L Chenault, of Russellville, for appellee.

Brown Justice.

This is an action of assumpsit on a policy of insurance issued by the defendant to plaintiff's husband, Hayne Feltman, as the insured, naming the plaintiff as the beneficiary, on June 3 1910. Feltman died on December 1, 1929, and it is conceded by appellant that count 1 of the complaint as last amended is sufficient, and no point is made as to the sufficiency of the other counts.

In addition to the general issue, the defendant, by several pleas in substance and legal effect the same, set up as a defense that the policy sued on was, for a valuable consideration, surrendered by Hayne Feltman, the insured, in June, 1929, and that he received in lieu of it a new policy which was known as "Ordinary Whole Life Certificate"; that this was in settlement of all rights under the old policy or certificate.

The plaintiff, after taking issue on said pleas, filed special replications thereto, alleging that plaintiff and her husband "were living together as husband and wife in Marion County, Alabama, at the time said policy was issued and continued to so live together as such man and wife until the date of his death, which occurred about December 1st, 1929; and plaintiff avers that all of the premiums due and payable on said policy at and before the death of said Hayne W. Feltman had been fully paid to the defendant; and that said policy was in the possession of this plaintiff and her said husband Hayne W. Feltman, and plaintiff avers that the defendant's agent or servant, while acting within the line and scope of his agency or service came to the home of this plaintiff and said insured about or during the month of June, 1929, and then and there represented to the said Hayne W. Feltman and this plaintiff that the said policy which was issued as aforesaid was no good and that the interest had already consumed the policy and that it was worthless, or words to that effect, and by said representation induced the said Hayne W. Feltman to deliver said policy to said agent and plaintiff avers that said statements and representations of said agent were false and fraudulent and that the said Hayne W. Feltman relied on said statements and representations, and relying thereon was induced to deliver said policy to the said agent, and plaintiff avers that this plaintiff, as the beneficiary in said policy, was damaged to the amount sued for in her complaint."

The defendant, after its demurrers to said replications were overruled, took issue thereon and filed special rejoinders among which are B, which (after restating the facts set up in said special pleas) alleged: "And after knowledge of the fraud alleged in said replications to have been practiced upon said Hayne W. Feltman in said exchange of policies retained the said new policy or certificate, known as Ordinary Whole Life Certificate so issued to him in exchange of the policy sued upon, and this plaintiff brought suit thereon in this cause by complaint filed herein on the 29th day of May, 1930; and the plaintiff thereby elected to claim under said certificate, and is now estopped from setting up said fraud." And C, which (after restating the facts set up in the special pleas) alleged: "And defendant alleges that after the death of the said Hayne W. Feltman, the plaintiff retained the policy or certificate so issued to him in exchange, and brought suit upon the same in this cause by complaint filed herein on the 29th day of May, 1930. And at the time of bringing said suit thereon the plaintiff had notice of the alleged fraud by which it is alleged that the said Hayne W. Feltman was induced to accept said certificate in exchange for the certificate which had been originally issued to him by the defendant in the year 1910; and this plaintiff is estopped from...