United Sec. Life Ins. Co. v. Dupree

Decision Date16 October 1962
Docket Number6 Div. 881
Citation41 Ala.App. 601,146 So.2d 91
PartiesUNITED SECURITY LIFE INSURANCE COMPANY v. Vina DUPREE.
CourtAlabama Court of Appeals

S. P. Keith, Jr., Birmingham, for appellant.

Fite & Fite, Hamilton, for appellee.

PRICE, Presiding Judge.

The appellant has moved to strike the brief of appellee because it was not filed in accordance with court rule, in that the counter argument is not addressed separately and severally to appellant's assignments of error.

It is not mandatory that a brief be filed by the appellee. Where the appellant submits the cause on brief and no brief is filed by the appellee, the court considers the cause on its merits on the assumption that appellee is interested in having the judgment sustained. Tri-City Gas Company v. Britton, 230 Ala. 283, 160 So. 896. In the absence of brief for appellee the facts and record as stated in appellant's brief will be accepted as true. See 2A Ala.Dig., Appeal and Error, k768 for cases.

Rule 10 of the Supreme Court Rules of Practice is directory only. The appellee's brief in this cause, in which it accepts as true the statement of the case and the facts contained in appellant's brief, then sets out under the heading 'Propositions of Law,' a concise statement of the propositions of law relied upon to meet the alleged errors and sustain the judgment, together with the authorities relied upon in support of each, and after that the 'Brief and Argument,' argues the points relied on to sustain the judgment, is a sufficient compliance with the rule. The motion is denied.

ON THE MERITS

This suit was instituted in the Circuit Court of Marion County by appellee, Vina Dupree, against appellant, United Security Life Insurance Company, a Corporation, for the return of premiums claimed to be due her under the following rider of a health and accident policy issued to her late husband, who died July 29, 1960.

'Return of Premiums

'In the event of the death of any insured named in the policy to which this supplement is attached, resulting from such injury or such sickness, the Company will pay to the beneficiary an amount equal to the decedent's proportionate share of the premiums paid for this policy, but not exceeding $500.00. This benefit is in addition to all other benefits provided by this Policy.'

The supplement or rider was issued contemporaneously with the policy and was attached to and became a part of it. The defendant pleaded in short by consent, etc., the general issue.

The court sitting without a jury, rendered judgment in favor of plaintiff in the sum of $228.60.

The first assignment of error challenges the action of the trial court in overruling defendant's demurrer to the complaint on the ground that notice and proof of loss were not alleged.

The complaint avers the essential facts in like general terms as used in form 12, in Section 223 of Title 7, Code of 1940, except that in form 12, the allegation is 'of which the defendant has had notice,' and the instant complaint avers that, 'demand was made upon defendant for the payment of said sum by the plaintiff.' We are of the opinion this was a sufficient averment of notice and no error was committed in overruling the demurrer on the ground insisted on.

Plaintiff introduced the policy in evidence and testified her husband, M. J. Dupree, died on July 29, 1960; that she had paid the annual premiums of $43.13 by check, and had receipts showing payment, but did not have them in court; that in October of 1960 she deposited in the post office in Guin, Alabama, a letter addressed to the defendant at its home office in Birmingham, in which letter she notified the company of the death of her husband; that she also wrote the company again in March, 1961; that she did not keep copies of the letters she wrote and she received no reply from the company; that Mr. Carter wrote a letter to the company for her on July 22, 1961; that she received a letter from the company, defendant's exhibit '1', dated June 7, 1961, and a letter, defendant's exhibit '2', dated July 17, 1961.

Travis Ray Carter testified he had written four letters to the company for Mrs. Dupree, in May, June, July and August, 1961; that he did not receive a reply to either of his letters but Mrs. Dupree received replies to his letters; that he also talked with Boyd Aldredge, defendant's agent, in June, 1961, and had turned the death certificate of insured over to him.

Mr. Frank Aspinwall testified he was the defendant's Vice-President in charge of claims; and had all claim records under his supervision; that he had never received a letter from Mrs. Dupree, but had received a letter from Boyd Aldredge, defendant's exhibit '4', dated June 2, 1961, enclosing certified copy of death certificate, and one from Travis Carter, defendant's exhibit '3', dated July 22, 1961; that on August 1, 1960, he paid a hospital claim to the Guin Hospital for Mr. Dupree's illness, but there was nothing on the claim indicating the patient had died. On cross-examination the witness stated that although it was not probable, there was a possibility that a letter could be misplaced in the claims department.

It is argued that plaintiff is not entitled to recover because of a fatal variance between the averment and proof, because the policy does not show her as beneficiary.

It is true plaintiff claimed as beneficiary and no beneficiary was named in the policy, but advantage of the variance may not be taken on this appeal, since there was no objection to the introduction of the policy in evidence. Reliance Life Insurance Company v. Russell, 208 Ala. 559, 94 So. 748; Cassady v. Williams, 234 Ala. 299, 174 So. 485; Kurn v. Counts, 247 Ala. 129, 22 So.2d 725, Rule 34, Circuit Court practice.

The trial court did not err in refusing to exclude the evidence on the ground the plaintiff had not made out a prima facie case.

It is argued that the amount of recovery, if any is due under the policy, would be payable to insured's estate; that suit was brought by plaintiff not as administratrix or executrix of the estate of her deceased husband, but by her as an individual, and the policy is silent as to any beneficiary, therefore, the plaintiff has wholly failed to prove that she is entitled to recover.

Under Title 7, Section 126, Code of 1940, 'Actions on promissory notes, bonds, or other contracts, express or implied, for the payment of money, must be prosecuted in the name of the party really interested,...

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    ...Co., 93 N.M. 507, 601 P.2d 1203-04 (1979); McKnight v. Pardon, 313 Ky. 154, 230 S.W.2d 631, 632 (1950); United Sec. Life Ins. Co. v. Dupree, 41 Ala.App. 601, 146 So.2d 91, 96 (1962); Home Ins. Co. v. Continental Ins. Co., 180 N.Y. 389, 73 N.E. 65, 66 (1905). See also, Central Nat'l Ins. Co.......
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    ...Ins. Co. v. Maples, 37 Ala.App. 74, 66 So.2d 159, cert. denied, 259 Ala. 189, 66 So.2d 173 (1953); United Security Life Ins. Co. v. Dupree, 41 Ala.App. 601, 146 So.2d 91 (1962). A proper party to be paid the proceeds from the contract when the insured has died and the policy of insurance ha......
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    • April 8, 1975
    ...& Lumber Co., 224 F. 930 (4th Cir. 1915); Hager v. McDonald, 65 F. 200, 202 (C.C., W.D.Mo., W.D. 1895); United Security Life Ins. Co. v. Dupree, 41 Ala.App. 601, 146 So.2d 91 (1962); Reward Oil Co. v. White, 333 Ill.App. 241, 77 N.E.2d 436 (1948); Hochsprung v. Stevenson, 82 Mont. 222, 266 ......
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    ...became a contract for the payment of money to the personal representatives of the named insureds. United Security Life Insurance Company v. Dupree, 41 Ala.App. 601, 146 So.2d 91 (1962). Having reached this conclusion, we are still confronted by the general rule that an obligation to pay mon......
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