United Burial & Insurance Co. v. Collier

• Citation: 139 So. 104,24 Ala.App. 546
• Decision Date: 03 November 1931
• Docket Number: 8 Div. 360.
• Court: Alabama Court of Appeals
• Parties: UNITED BURIAL & INS. CO. v. COLLIER.

139 So. 104

24 Ala.App. 546

UNITED BURIAL & INS. CO.
v.
COLLIER.

8 Div. 360.

Court of Appeals of Alabama

November 3, 1931

Rehearing Denied Nov. 17, 1931.

Appeal from Circuit Court, Madison County; Paul Speake, Judge.

Action for breach of an agreement to insure by W. H. Collier, as administrator of the estate of Ida M. Winston, deceased, against the United Burial & Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in United Burial & Insurance Co. v. Collier (8 Div. 356) 139 So. 106. [139 So. 105]

Watts & White, of Huntsville, for appellant.

[24 Ala.App. 547] Walter J. Price, of Huntsville, for appellee.

SAMFORD, J.

The plaintiff states his cause of action in count 4 of the complaint as follows:

"Plaintiff as administrator of the estate of Ida M. Winston deceased claims of the defendant the sum of Three Hundred ($300.00) dollars as damages for breach of a parol contract made and entered into by the plaintiff's intestate, Ida M Winston, and the defendant, by and through its duly authorized agents, George W. Powell and D. H. Knight, on the 3rd day of March, 1930, wherein the defendant agreed to insure the Plaintiff's intestates life and pay burial expenses of the plaintiff's intestate upon her death when she paid the sum of twenty-five (25¢) per week until her death and that upon the payment of a premium the said contract would take effect immediately. The plaintiff's intestate paid to the said agents of the defendant, on said date-four (4) weeks in advance or One ($1.00) Dollar, and the defendant by its said agents, duly receipted her for said premiums. And the Plaintiff's intestate died after said premiums were paid and during the said four (4) weeks to-wit on the 12th day of March, 1930, and her funeral expenses were in excess of three hundred ($300.00) dollars and the defendant has had notice of her death, and the defendant refuses to pay said funeral expenses as agreed, all to the damages of the plaintiff's intestate as aforesaid."

This count states a cause of action for the breach of an executory oral agreement to insure, and is not subject to any of the grounds of demurrer assigned. The contract, as stated, contains all the essential elements and terms of the contract and that these terms were agreed upon, so that nothing remained to be done except the issuance and delivery of a formal contract of the company insuring deceased and agreeing to pay funeral expenses of $300 in event of her death. The terms used in the agreement are informal, but are easily understandable.

In Royal Exchange Assurance of London v. Almon, 202 Ala. 374, 80 So. 456; Royal Neighbors of America v. Fortenbery, 214 Ala. 387, 107 So. 846; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175, the distinction is made and pointed out between a policy of insurance as controlled by our statutes and an agreement to insure, the latter of which may be entered into by parol and without the strict formality of the former. Royal Neighbors, etc. v. Fortenbery, supra; Commercial Mut. Ins. Co. v. Union Mut. Ins. Co., 19 How. 318, 15 L.Ed. 636; Peoria Mar., etc., Ins. Co. v. Walser, 22 Ind. 73; Nat. Life Stock Ins. Co. v. Cramer, 63 Ind.App. 211, 114 N.E. 427; Wooten v. Grand United...