Watts v. Metropolitan Life Ins. Co.

• Decision Date: 14 February 1924
• Docket Number: 6 Div. 985.
• Citation: 100 So. 812,211 Ala. 404
• Parties: WATTS v. METROPOLITAN LIFE INS. CO.
• Court: Alabama Supreme Court

100 So. 812

211 Ala. 404

WATTS v. METROPOLITAN LIFE INS. CO.

6 Div. 985.

Supreme Court of Alabama

February 14, 1924

Rehearing Granted June 5, 1924.

Appeal from Circuit Court, Jefferson County; Dan A. Green, Judge.

Action on a policy of life insurance by Barbara Watts against the Metropolitan Life Insurance Company. Judgment for defendant and plaintiff appeals. Affirmed.

Black Harris & Foster, of Birmingham, for appellant.

Cabaniss Johnston, Cocke & Cabaniss and Brewer Dixon, all of Birmingham, for appellee.

THOMAS J.

The suit was on a policy of insurance, and the defense was a lapse for the nonpayment of premiums. At the conclusion of the evidence the bill of exceptions recites:

"At the request of the defendant in the case, the following charge, which was in writing, was given to the jury by the court: 'If you believe the evidence your verdict must be for the defendant.' Thereupon the plaintiff, in open court, and in the presence of the jury, duly and legally excepted to the charge as given.

"The court further charged the jury as follows: 'And in accordance with that charge, your verdict will be, "We, the jury find in favor of the defendant"-one of your number signing the verdict as foreman.' Thereupon plaintiff, in open court, and in the presence of the jury, duly and legally excepted to that charge of the court."

This was in effect an affirmative charge for defendant without hypothesis. Scott v. State, 110 Ala. 48, 20 So. 468; Davidson v. State ex rel. Woodruff, 63 Ala. 432; Shipp v. Shelton, 193 Ala. 659, 69 So. 102.

The prima facie proof of the issue and possession of the policy by plaintiff, and of the loss or death, as required and within the period covered by the policy, being made ( Sov. Camp v. Ballard [Ala. App.] 97 So. 895), the burden was imposed on the insurer to have pleaded and proven the forfeiture, if such there was, per the provisions of the policy, and on which the defense was rested. Norwich Union Fire Ins. Society v. Prude, 156 Ala. 565, 571, 46 So. 974.

The lapse of an insurance contract for nonpayment of premiums is such a condition for forfeiture as must be pleaded under a given statement in the policy, which must be strictly construed. Equitable Life Assur. Soc. of U.S. v. Golson, 159 Ala. 508, 48 So. 1034; Union Mut. Aid Ass'n of Mobile v. Carroway, 201 Ala. 414, 78 So. 792; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175; Continental Casualty Co. v. Ogburn, 175 Ala. 357, 57 So. 852, Ann. Cas. 1914D, 377. And such conditions for the benefit of the insurer may be waived, or there may be an estoppel to such insistence by reason of the acts of an officer or agent of the insurer having such authority. Woodmen of the World v. Alford, 206 Ala. 18, 89 So. 528; Sov. Camp, W. O. W., v. Eastis, 210 Ala. 29, 96 So. 866; U. O. of G. C. v. Hooser, 160 Ala. 334, 49 So. 354; Mutual L. I. Co. v. Lovejoy, 201 Ala. 337, 78 So. 299, L. R. A. 1918D, 860, 870, note.

An insurance company, having denied liability on the sole ground of a forfeiture for nonpayment of premiums, is held thereby to have waived all other grounds of forfeiture. Georgia Home Ins. Co. v. Allen, 128 Ala. 451, 30 So. 537; Fidelity-Ph nix Fire Ins. Co. v. Ray, 196 Ala. 425, 427, 72 So. 98. It follows that the burden of proof as to the issue of fact of forfeiture for nonpayment of premiums is upon the defendant so pleading. This fact of payment vel non resting in parol (Shipp v. Shelton, 193 Ala. 658, 69 So. 102), is disputed-that is, there is conflict in the evidence as to the fact of payment of the premium installment due and payable for November, 1918. The testimony of the plaintiff was that she and her daughter met, on the streets of Talladega, the manager or agent of defendant's business or branch, and paid him the amount of that premium, which was accepted by him for the company as the full amount thereof.

This fact of payment was denied by Mr. Thornton, defendant's said manager at Anniston, though he admitted that he was frequently in Talladega, covering the time of the alleged payment. Thus an issue of fact, as to the timely payment of the premium, was presented by contradictory parol evidence, making a jury question. Sov. Camp, W. O. W., v. Adams, 204 Ala. 667, 672, 86 So. 737. The general affirmative charge, with hypothesis, should not be given when there is such a conflict in evidence. McMillan v. Aiken, 205 Ala. 35, 88 So. 135. And this is the rule, though the conflict in evidence be presented in the testimony (direct and cross) of the same witness. Jones v. Bell, 201 Ala. 336, 77 So. 998.

It has been declared that, where the facts warrant the giving of the general affirmative charge, and the burden of proof is upon the party requesting that charge, if that burden of proof is sought to be discharged by parol evidence of which there is no dispute, the general affirmative charge should nevertheless be upon the hypothesis that the jury believe the evidence, since the witnesses were seen and heard by the jury, and their manner and demeanor observed. The court should not peremptorily instruct the jury and direct their verdict, or draw conclusions as to credibility, or decide which of conflicting tendencies of the evidence should be adopted; this must be left to the jury. Brown v. Mobile Elec. Co., 207 Ala. 61, 91 So. 802; Penticost v. Massey, 201 Ala. 261, 77 So. 675; Burgess v. Burgess, 201 Ala. 631, 79 So. 193; Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897; Jones v. Bell, 201 Ala. 336, 77 So. 998; Ex parte Penticost, 202 Ala. 682, 81 So. 638; Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Amerson v. Corona Coal & Iron Co., 194 Ala. 175, 69 So. 601; Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257; Sherrill v. M. & M. T. & S. Bank, 195 Ala. 175, 70 So. 723; Bowen v. Hamilton, 197 Ala. 418, 73 So. 5; Dorough v. Ala. Power

Co., 200 Ala. 605 ,76 So. 963.

The rule as to when the general affirmative charge should not be given is well established. It is pertinent to inquire if such general charge may be given without hypothesis, when there is no evidence and whenever the court would sustain a demurrer to the evidence interposed by the party requesting the instruction. Such charge, without hypothesis, may not be given for a plaintiff having a burden of proof to discharge, and which is sought to be shown by parol testimony; its credibility is for the jury. When the plaintiff has introduced his evidence, and it does not tend to prove his cause of action, the court may refuse to hear evidence by the defendant, and if duly requested, may direct the verdict. Stowers v. Dwight Mfg. Co., 202 Ala. 252, 80 So. 90; Crim v. L. & N. R. R. Co., 206 Ala. 110, 121, 89 So. 376, and authorities; L. & N. R. R. Co. v. Jenkins, 196 Ala. 136, 138, 72 So. 68; McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Tobler v. Pioneer Min. & Mfg. Co., 166 Ala. 482, 517, 52 So. 86; Warren v. State, 197 Ala. 313, 326, 72 So. 624; Western Union T. Co. v. Louisell, 161 Ala. 231, 50 So. 87; A. G. S. Ry. Co. v. Brock, 161 Ala. 351, 49 So. 453; Smoot v. M. & M. Ry. Co., 67 Ala. 17; Tabler, Crudup & Co. v. Sheffield L., I. & C. Co., 87 Ala. 305, 6 So. 196; Cent. R. & B. Co. v. Roquemore, 96 Ala. 236, 11 So. 475; Sov. Camp, W. O. W., v. Burrell, 204 Ala. 210, 85 So. 762. In the cases of Scott v. State, 110 Ala. 48, 20 So. 468, Davidson v. State ex rel. Woodruff, 63 Ala. 432, Wolf v. Delage, 150 Ala. 445, 43 So. 856, and Crutcher v. M. & C. R. R. Co., 38 Ala. 579, such charges were without hypothesis, and held to be error. The affirmative instruction given at defendant's request, and the qualification thereof by the court, amounted to an affirmative instruction without hypothesis. Shipp v. Shelton, 193 Ala. 658, 69 So. 102; Davidson v. State ex rel. Woodruff, 63 Ala. 432; Scott v. State, 110 Ala. 48, 20 So. 468. Is this a case for general affirmative instruction, without hypothesis in defendant's behalf?

The evidence was uncontradicted that at the time of the alleged payment of the November, 1918, premium, the same was payable through the agent, Thornton, and the Anniston agency. Evidence that said premium was never received in that office was not res inter alios acta. The fact that plaintiff's evidence showed payment to Thornton, the manager of the Anniston office of defendant, when that agent was in Talladega, and which was denied by him, did not deprive the defendant of that tendency of evidence or inference deducible by the jury in corroboration of Thornton's denial of payment.

It is not contended by plaintiff that other premiums were paid. Justifications for further nonpayment urged are, viz. (1) physical inability within the disability provisions of the policy, and (2) that the notice by the insurer to the insured that the policy was forfeited for nonpayment of premiums was sufficient to inform insured that further premiums would not be received, if tendered.

Pertinent provisions of the policy are:

"Payment of Premiums.-Except as herein provided the payment of a premium or installment thereof shall not maintain the policy in force beyond the date when the next premium or installment thereof is payable.

"All premiums are payable in advance at said home office or to any agent of the company upon delivery, on or before date due, of a receipt signed by the president, vice president, secretary or actuary of the company and countersigned by said agent.

"A grace of thirty-one days shall be granted for the payment of every premium after the first during which time the insurance shall continue in force."

"Upon failure to pay any premium or any part thereof when due, this policy, except as otherwise provided herein, shall immediately lapse."

The reinstatement clause is:

"Reinstatement.-Unless the cash value has been paid or the extension period

...