Union Mut. Ins. Co. v. Peavy
| Decision Date | 07 October 1930 |
| Docket Number | 7 Div. 631. |
| Citation | 133 So. 300,24 Ala.App. 116 |
| Parties | UNION MUT. INS. CO. v. PEAVY. |
| Court | Alabama Court of Appeals |
Rehearing Denied Nov. 11, 1930.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Action on a policy of life insurance by William Peavy against the Union Mutual Insurance Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Inzer Inzer & Davis, of Gadsden, for appellant.
Alto V Lee, of Gadsden, for appellee.
Appellee sued to recover the sum of $59, claimed to be due under a policy of insurance issued by the appellant to Georgia Peavy the mother of appellee. By the terms of the policy the assured was to pay a weekly premium of 25 cents, and the appellant agreed to pay a burial benefit of $59 upon the death of assured, to William Peavy, the beneficiary named, and further agreed to pay to assured a stipulated weekly benefit for sickness or accident, subject to limitations and conditions stated in the policy.
The complaint, in one count, follows the form (12) set out in section 9531 of the Code of 1923, alleges that the policy was issued on June 7, 1926, that assured died May 19, 1928, and, as stated, claims only the death or funeral benefit.
Appellant objected to the introduction of the policy in evidence on the stated grounds that the policy was not shown to be in force at the time of the death of the assured, and because the same was irrelevant and inadmissible.
Neither averment as to the term for which the policy was issued nor the fact that the policy was in force is contained in the present Code form-different, it is to be observed, from the form laid down in section 5382 of the 1907 Code. Plaintiff was not required, as a condition to introducing the policy, to show that it was in force. His prima facie case was made when he showed proof of the death of assured, and notice to the defendant, and introduced the policy in his possession. Sovereign Camp, W. O. W., v. Carrell, 218 Ala. 613, 119 So. 640.
Forfeiture is a defensive matter to be brought forward by the defendant. Locomotive Engineers' Mut. Life & Acc. Ins. Ass'n v. Hughes, 201 Ala. 58, 77 So. 352.
Notwithstanding the policy in suit carried a benefit for sickness or accident, it was nevertheless a life policy. Eminent Household, etc., v. Gallant, 194 Ala. 680, 69 So. 884.
Both the changed statutory form for the complaint and the difference in character of the policies dealt with render inapt the cases of United States H. & A. Co. v. Veitch, 161 Ala. 630, 50 So. 95, and Locomotive Engineers' Mut. Life & Acc. Ass'n v. Hughes (in this particular) supra. The policy was received in evidence without error.
Appellant relies upon those clauses of the policy contract providing (a) that premiums shall be payable each Monday in advance, and that a failure to pay for two Mondays shall render the policy void; (b) that, in event of a lapse, the assured may reinstate by making application to that end on blanks furnished by the company, and paying all past-due premiums (if paid in installments, the same to be received by the company as deposits on the past-due amount and without assuming any liability on that account, other than the obligation to refund in event the application is denied); and (c) that the company shall not be liable for sickness or death occurring within five weeks from the date of reinstatement following a lapse.
The receipts offered in evidence show the payment by assured of a sum equal to the aggregate of all weekly premiums due by assured under the policy from the time of its issuance to time of her death. True, one receipt, although admittedly issued by the authorized agent of the company, was said by the agent to be a duplicate. But the credence to be accorded this testimony, in contradiction of the writing, was for the jury.
The receipts in evidence and the collection record of the agent indicate an irregularity in the payment of her premiums by the assured continuing for a period of some six months just preceding the...
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