U.S. Health & Accident Ins. Co. v. Savage

• Decision Date: 22 January 1914
• Citation: 185 Ala. 232,64 So. 340
• Parties: UNITED STATES HEALTH & ACCIDENT INS. CO. v. SAVAGE.
• Court: Alabama Supreme Court

64 So. 340

185 Ala. 232

UNITED STATES HEALTH & ACCIDENT INS. CO. v. SAVAGE.

Supreme Court of Alabama

January 22, 1914

Appeal from Circuit Court, Jefferson County; John C. Pugh, Judge.

Action by J.J. Savage against the United States Health & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint is as follows: "Plaintiff claims of defendant $300 due on a policy whereby defendant, on, to wit, the 15th day of March, 1909, insured for the term of, to wit, three years, the life and health of plaintiff, J.J. Savage, who suffered disability by reason of illness from, to wit, July 16, 1909, to January 1, 1910, of which defendant has had notice. Said policy is the property of plaintiff."

The contract of insurance proved by plaintiff, by secondary evidence, the writing having been lost, was made as alleged on or about March 15, 1909, but contained the following provision: "This insurance will expire one month the time this policy is dated at 12 o'clock noon, standard time, at the place where countered, but may be consecutively renewed from term to term, subject to all of its conditions upon the payment of the monthly premium in advance." It contains a provision also that the acceptance of any renewal premium shall be optional with the company, and that the company may cancel this policy at any time by mailing written notice to the assured, etc.

The complaint was amended by the addition of several of the common counts, but no evidence is offered in support of those counts. The court refused the affirmative charge in writing requested by defendant, and there was judgment for plaintiff for $348.

Abbott & Daugette, of Birmingham, for appellant.

Gaston & Pettus, of Birmingham, for appellee.

SOMERVILLE J.

The complaint is in the Code form (Code 1907, p. 1196). This form, though simple and concise, requires a description of the policy sued on to the extent of its date and the term of its operation. As averments descriptive of the contract these matters are material and essential, and a substantial variance between the averments of the complaint and the terms of the contract offered in evidence to support it is fatal to any recovery if objection is seasonably made by the defendant in the trial court.

The variance here apparent was, under all the authorities, a fatal variance, and the trial court erred in refusing the peremptory instruction requested. 9 Cyc. 750e; 31 Cyc. 710 716; McLendon v. Godfrey, 3 Ala. 181; Jordan v Rooney, 23 Ala. 758; May & Bell v. Miller, 27 Ala. 515; Mason v. Hall, 30 Ala. 599; Boylston v. Sherran, 31 Ala. 538; Gamble v. Kellum, 97 Ala. 677, 12 So. 82; U.S.H. & A. Co. v....