Travelers' Ins. Co. v. Whitman

CourtSupreme Court of Alabama
Citation80 So. 470,202 Ala. 388
Docket Number8 Div. 92
Decision Date28 November 1918

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action by E.D. Whitman against the Travelers' Insurance Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Tillman Bradley & Morrow, of Birmingham, and Callahan & Harris, of Decatur, for appellant.

G.O Chenault, of Albany, for appellee.


The case was tried on two counts of the complaint, declaring upon a policy of accident insurance, to which demurrer was assigned.

Several of the grounds of demurrer overruled to counts 2 and 3 were that the contract of insurance was not set out in haec verba or in legal effect, and it was not averred defendant had notice of the death of insured as required by the terms of the policy. "Section 5321 of the Code of 1907 commands brevity in pleading, but brevity consistent with perspicuity and such an intelligible statement of facts as that a material issue in law or fact can be taken by the adverse party. The Code also contains a number of forms of complaint, which have the force of law, and provides, in section 5322, that any pleading which conforms substantially to the schedule of forms is sufficient. In Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538, a complaint on a policy of life insurance, confessedly insufficient at the common law, was sustained because it was in substantial conformity to the analogous forms prescribed by the Code for complaints on policies of marine insurance and on dependent covenants or agreements." Adler & Co. v Pruitt, 169 Ala. 213, 225, 53 So. 315, 319 (32 L.R.A.[ N.S.] 889). Though the Code contains no form of complaint on a policy of this character, yet if the counts conform to the analogous forms contained in the Code, aver the performance of any precedent condition or warranty contained in the policy, and aver the happening of the event on which the liability of insurer attached within the meaning and life of the policy, they are sufficient. Penn. Casualty Co. v. Perdue, 164 Ala. 508, 511, 51 So. 352; Prudential Casualty Co. v. Kerr, 80 So. 97; Pacific Mutual Life Ins. Co. v. Shields, 182 Ala. 106, 108, 62 So. 71; Sov. Camp W.O.W. v. Ward, 196 Ala. 327, 71 So. 404.

The complaint does not set out the terms of the policy in haec verba. Count 2 thereof avers that on March 11, 1915, the defendant insured "W.P. Vines against death, by accident, for a term of six consecutive periods of two months each thereafter," gives the name of the beneficiary therein, avers the death of insured occurred on July 20, 1915, "at a time when said insurance was in full force," that "said W.P. Vines died as the result of an accident," and that the defendant has had notice, for more than 60 days before the bringing of this suit, of the accidental death of the said W.P. Vines. Count 3 followed count 2 in averment, except that the event of liability by the terms of the policy was averred to have been "death by external, violent, and accidental means"; that, while the policy was in full force, "said W.P. Vines died from external, violent, and accidental means, in this: He fell and struck his head upon a brick pavement from which he died, of which the defendant has had notice." In short, the two counts declared upon a policy, insuring against death by accidental means, and alleged that death occurred from such cause within the life of the policy. This was sufficient declaration that the policy was in writing and founded on a valuable consideration. Prudential Casualty Co. v. Kerr, 80 So. 97.

In Pacific Mut. L. Ins. Co. v. Shields, supra (182 Ala. 108, 62 So. 72) Mr. Justice Mayfield observed of the sufficiency of averment that--

"While the complaint does not, in its allegations, follow the terms of the policy ipsissimis verbis, it does aver that the death of the insured was the result of an 'accidental injury independent of all other causes.' This we think was sufficient. It was unnecessary to aver the exact language of the policy."

In Shields' Case all the justices concurred.

It is true that Nat. L. & A. Ins. Co. v. Lokey, 166 Ala. 174, 177, 178, 52 So. 45, 46, contains the expression:

"A policy which insures against death resulting directly and independently of all other causes from bodily injuries effected through external, violent, and accidental means, though in a sense a policy of life insurance, is not the sort of policy contemplated in form 12 of section 5283 of the Code, nor does it evidence the character of contract men have in mind when they speak of life insurance."

Yet Mr. Justice Sayre expressly stated that the complaint (being discussed) followed the form laid down in the Code as for an action on a policy of life insurance:

"But the second count of the complaint states an action on a policy of accident insurance, *** and under this count the policy offered was admissible in evidence."

In the instant case counts 2 and 3 did not follow the Code form and declare as on a policy of life insurance, but on a policy insuring against death by accidental means, and aver that within the life of the policy the death of the assured occurred as the result of such accidental means. The Lokey and Shields Cases are not in conflict.

Appropriate assignments of error challenge the action of the trial court in sustaining demurrer "to plea 12 as amended." In its original form the plea was to the effect that the application to defendant by the insured for the policy sued on, by the terms of the policy, is made a part thereof; and in said application it is provided that the falsity of any statement contained therein shall "bar the right to recover if such statement is made with intent to deceive or materially affects either the acceptance of the risk or the hazard assumed by the company"; and it is further averred that in said application for insurance the insured made the statement that no application ever made by him for life, health, or accident insurance had been declined, and it is averred that said statement was false in this:

"Prior to said application to said defendant, the insured had made application for life insurance to a brotherhood society the name of which is unknown to defendant, and said application was declined. And defendant avers that the said statement made to the defendant in said application to defendant for insurance was made with intent to deceive defendant, and did deceive defendant."

To this plea demurrer was sustained, several grounds of which were that the plea fails to show that any application for life, health, or accident insurance made by assured had been declined, and that it is not alleged when and where the insured had made any application for any insurance which had been declined. Thereafter the record contains this recital:

"Defendant amends plea No. 12 after demurrer sustained by averring the insurance applied for by the said Vines in said benevolent order or society was for life insurance on his life, and the application was made within 12 months prior to the application for the policy sued on the time being otherwise unknown to the defendant. The defendant hereby tenders to the plaintiff and pays into court the sum of $12, being the amount of premiums paid by the said W.P. Vines, with interest thereon."

The amendment of the judgment nunc pro tunc shows that, after plaintiff's demurrers to pleas 1, 3, 4, 5, 6, and 7 were sustained, defendant filed pleas 8, 9, 10, 11, 12, 13, 14, and 15; and that, when demurrers to pleas 11 and 12 were sustained, defendant filed amended pleas 11 and 12, to which demurrer was sustained. Issue was joined on counts 2 and 3, upon pleas 2, 8, 9, 13, 14, and 15, and on replications 1, 2, and 3. Thus does the record not sustain the insistence of appellee's counsel that the demurrer sustained to plea 12 was before the last amendment or that the plea was abandoned by defendant. It is true the record fails to show the grounds on which the court rested its ruling on demurrer to that plea--the record not containing the demurrer to the plea as amended. That plaintiff assigned demurrer thereto is apparent from the recital of the judgment entry as amended nunc pro tunc.

The plea sought to make answer to both counts of complaint by the averment that by the contract terms of the policy any representation made in the application procuring the same being untrue and made with the intent to deceive, or materially affect the company's risk, rendered void the policy. As to this, the allegations of the plea were in legal effect that, in the application by which the insurance was procured, the insured represented that he had never made application for insurance in another company which was declined, but that, within 12 months of the issuance of said policy, the insured had made application for life insurance in another company which application was declined; and that such misrepresentation in said application, on which issued the instant policy, was made with intent to deceive, or that it materially affected the hazard or risk assumed by the company. Tender was made of the amount which had been paid by the insured as premiums thereon, together with interest, as required by statute. Code, § 4573; Allen v. Standard Ins. Co., 73 So. 897.

In Kelly v. Life Ins. Clearing Co., 113 Ala. 453, 21 So. 361, it was declared that, where the policy of life insurance contained reference to an application for insurance relating to the taking out of the insurance, the policy and the application would be considered as constituting the contract of insurance; and where, in such application insured made statements in answer to printed questions certifying they were true, the contract stipulations of the policy being that if...

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