State Sec. Life Ins. Co. v. Henson

• Decision Date: 18 May 1972
• Docket Number: 6 Div. 823
• Citation: 288 Ala. 497,262 So.2d 745
• Parties: STATE SECURITY LIFE INSURANCE CO., a Corp. (a/k/a Great States Life Insurance Co. of Quincy, Illinois, a Corp.) v. Marvin HENSON, Jr.
• Court: Alabama Supreme Court

Page 745

262 So.2d 745

288 Ala. 497

STATE SECURITY LIFE INSURANCE CO., a Corp. (a/k/a Great States Life Insurance Co. of Quincy, Illinois, a Corp.) v. Marvin HENSON, Jr.

6 Div. 823.

Supreme Court of Alabama.

May 18, 1972.

Rehearing Denied June 15, 1972.

George R. Stuart, III, William M. Acker, Jr., and A. Lamar Reid, Birmingham, for appellant.

J. Vernon Patrick, Jr., Chervis Isom, Marvin Cherner, James W. May, Jr., Birmingham, for appellee.

COLEMAN, Justice.

The defendant appeals from a judgment granting plaintiff's motion for new trial in an action for deceit.

The plaintiff is the appellee, Marvin Henson, Jr. The defendant is Great States Life Insurance Company of Quincy, Illinois, a corporation. Defendant is also referred to as State Security Life Insurance Company, a corporation. The matters herein mentioned allegedly occurred during the operation of Great States prior to merger with State Security.

Defendant sold four life insurance policies to plaintiff, two in September, 1962, and two in February, 1963. The complaint contains four counts relating to the sale of each policy. There are four sets of counts, one set for each policy. Except for names, dates, and other details, the allegations in each set of counts are the same, and we discuss only one set of counts relating to the sale of one policy. The same considerations and result apply to the sale of all policies.

The original complaint was filed August 2, 1968. In general effect, plaintiff alleges that defendant, by making false representations deceived plaintiff and induced him to purchase the policy and pay money for the same to defendant. In Courts II, III, and V, plaintiff alleges that defendant made false representations to plaintiff on or about September 24, 1962, and thereby induced plaintiff to purchase the policy. In Count IV, plaintiff alleges that on or about September 24, 1962, defendant embarked on a fraudulent scheme to induce plaintiff and others to purchase the policy.

Defendant's demurrer was overruled and defendant pleaded in short by consent the general issue with leave, etc. Defendant filed also pleas of the statute of limitations of one year averring that the representations allegedly made by defendant occurred more than one year prior to the filing of suit, and that the cause is barred by Title 7, § 26, Code 1940, there being no factual allegations bringing the cause within exceptions provided by Title 7, § 42, Code 1940.

Plaintiff filed a replication alleging that plaintiff did not discover the deceit until, to wit, September, 1967. We do not consider the sufficiency of the replication.

The trial was by jury. After the parties rested, the court charged the jury as follows:

'. . .. This case is based upon fraud and deceipt (sic) and the statute says--this is what I am reading to you, now, from Title 7 of the Code of Alabama of 1940, recompiled in 1958, Section 42. 'In an action seeking relief on the grounds of fraud--' that is what we are dealing with in this case '--where the statute has created the bar, the cause of action must not be considered as having accrued until the discovery by the given party of the facts constituting the fraud, after which he must have one year within which to prosecute his suit.' Ladies and gentlemen, this Court is holding that this matter of law, that this law suit was not brought within one year and therefore, ladies and gentlemen, I charge you that you cannot find for the plaintiff and against the defendant in this case. . . ..'

Verdict was for defendant, and judgment was rendered on the verdict.

Plaintiff filed motion for new trial on the ground that the court erred in giving the affirmative charge for defendant for that there was at least a scintilla of evidence to show that plaintiff had not discovered the fraud within one year prior to filing suit and that plaintiff could not have discovered the same within said period of time by the exercise of reasonable diligence.

The error assigned is that the court erred in granting the motion. The parties agree that the motion was granted on the aforesaid ground. The question for decision is whether there is a scintilla of evidence to support plaintiff's replication.

In making this determination the evidence must be viewed in its light most favorable to plaintiff. Robinson v. Morrison 272 Ala. 552, 133 So.2d 230, and authorities there cited.

'In Alabama the rule in civil cases is that the case must go to the jury if the evidence or the reasonable inferences arising therefrom furnish 'a mere 'gleam,' 'glimmer,' 'spark,' 'the least particle,' the 'smallest trace', 'a scintilla" in support of the theory of the defendant's liability. Ex parte Grimmett, 228 Ala. 1, 152 So. 263, 264; Alabama Great Southern R. Co. v. Bishop, 265 Ala. 118, 89 So.2d 738, 64 A.L.R.2d 1190.' Louis Pizitz Dry Goods Company v. Harris, 270 Ala. 390, 392, 118 So.2d 727, 730.

'It is only when the evidence is without conflict and establishes the requesting party's right to recovery that the jury may be given affirmative instructions. Watts v. Metropolitan Life Ins. Co., 211 Ala. 404, 100 So. 812; McMillan v. Aiken, 205 Ala. 35, 88 So. 135. And this is true if the conflict in evidence is presented in the testimony of the same witness, or that of several witnesses for the same party or the different parties to the suit. Jones v. Bell, 201 Ala. 336, 77 So. 998.' M. Frank Sons & Co. v. Davis, 214 Ala. 601, 108 So. 575.

The burden of allegation and proof as to fraud and its discovery by plaintiff within one year rested upon the plaintiff. Maxwell v. Lauderdale, 200 Ala. 648, 77 So. 22.

In Count II, plaintiff claims damages for deceit in the sale of a contract issued by defendant, viz., defendant's "Variable Investment Plan," Policy No. 29173, and avers 'that the defendant represented to the plaintiff on or about September 24, 1962, that the said contract was an investment on which the plaintiff would realize dividends which within three years would be sufficient to cover 'premiums' payable by the plaintiff to the defendant . . .,' and that defendant, at the time of the sale of the contract, knew that said representation was untrue and was not based on actual experience or other facts which might furnish a reasonable basis for said representation.

In Count III, plaintiff alleged that defendant made the same false representation as alleged in Count II and wilfully concealed the fact that defendant had no records of operating profits or other reasonable basis in fact for making said representation concerning dividends, and, at the time of sale, defendant knew that said representation was untrue and not based on actual experience or other fact which might furnish a reasonable basis for said representation, and knew that the facts concealed should have been disclosed to plaintiff in view of said representations.

In Count V, plaintiff alleges '. . . that the defendant represented to plaintiff on or about September 24, 1962, that 'dividends' would be paid on such contract by defendant to plaintiff, if plaintiff purchased said contract.' Plaintiff alleged that defendant knew that 'said representation was false in that the 'dividends' payable on such contract were in fact a rebate of a portion of the premium payable by purchasers of such contracts to the defendant.'

Among other things, plaintiff testified that two men representing defendant came to see plaintiff and his wife in September, 1962, and:

'A They just said, they told me, they said, 'Marvin, we are with a new company. We have got a one fine deal going.''

Plaintiff further testified:

'Q . . .. What did they say about earnings to you, your investment, if anything?

'A They said that I could make up as much as forth percent interest on it. They told what material they had there and they said that we had came to show it to you. They had all kinds of material. They had papers and charts and I told them that if this was some kind of insurance--he said no, this thing is guaranteed. They have got it set up so that you can't lose your money. There is no way you can lose your money. I told them if it's something, some kind of insurance I don't need it; I work with U.S. Steel and we have good insurance and he said this is not insurance, this a profit sharing deal with your money, making money.'

Plaintiff testified that about the third year he got in touch with one of the men, Mr. Strength, that plaintiff was not satisfied with 'the interest' that we had gotten and asked him to look at it because he had promised us more; that plaintiff paid about the same amount in installments each year and it never did decrease.

Plaintiff testified that he went to a meeting with the staff of the State Insurance Department in Montgomery subsequent to August 3, 1967, and at that meeting he first learned that the contracts he had purchased were insurance policies.

Insurance Investigator Easterwood, employed by the State, testified that at some time subsequent to August 3, 1967, plaintiff came to the office of the witness in Montgomery and:

'A I don't think that Mr. Henson knew that he had just a life insurance policy participant when he came into my office.'

Plaintiff testified on cross-examination:

'Q And you also knew what was on those policies in 1963? And you also knew how much payment was due in?

'A Yes, sir.'

Defendant introduced into evidence a letter dated July 11, 1967, and stamped received in the State Department of Insurance the next day. The letter recites:

'Dear Mr. Houseal,

'I'm writing to you in regard to four Life Insurance Policy insured to me Sept. 24, 1962 & Feb. 8, 1963. Total payments as of now 9496.15.

'Policy No. 28783 #28787 #29173 #29174

'Great State Life Insurance Co.

President L. Jarvill

301--Oak Street,

P.O. Box 809

Quincy, Illinois 62302

'Sir: This was sold to me & my Fraternal Bros & relatives by a member of the Fraternal Order of Eagle's, Pratt City by false pretenses.

'This is the sale pitch used: We...