Opinion
7 Div. 101.
October 28, 1920. Rehearing Denied January 13, 1921.
Appeal from Circuit Court, Etowah County; W. J. Martin, Judge.
Inzer, Inzer Lusk, of Gadsden, for appellant.
Court erred in sustaining demurrers to plea 2. 186 Ala. 460, 65 So. 65; 174 Ala. 511, 56 So. 568; also in sustaining demurrer to plea 4. 10 Ala. App. 15, 64 So. 513, 186 Ala. 484, 65 So. 68. Court also erred in sustaining demurrers to plea 5. 192 Ala. 91; 192 Ala. 380, 68 So. 271. Court erred in sustaining demurrers to plea 6. 77 Ala. 194, 54 Am. Rep. 58; 86 Ala. 558, 6 So. 83, 11 Am. St. Rep. 67. Court erred in overruling demurrers to plaintiff's replications to defendant's pleas 7 and 8. 113 Ala. 479, 22 So. 288, 59 Am. St. Rep. 129; 138 Ala. 202, 35 So. 33; 178 U.S. 327, 20 Sup. Ct. 906, 44 L.Ed. 1088; 150 U.S. 313, 14 Sup. Ct. 99, 37 L.Ed. 1093. Court erred in rendering judgment on the facts. 162 Ala. 570, 50 So. 293; 11 Ala. App. 670, 66 So. 954; 1 Ala. App. 583, 55 So. 951.
Victor Vance, of Gadsden, for appellee.
There was no error as to plea 2. 196 Ala. 304, 71 So. 409; 171 Ala. 435, 55 So. 166; 25 Cyc. 921; 186 Ala. 460, 65 So. 65. The court properly sustained demurrers to plea 4. 76 Fla. 592, 80 So. 516, 2 A.L.R. 1505; 186 Ala. 460, 65 So. 65. On these authorities court acted properly as to plea 6. The replications were good. 25 Cyc. 787, 795; 14 R. C. L. 1548; 25 Cyc. 885; 80 Ala. 467, 2 So. 125, 59 Am. St. Rep. 816, and authorities supra.
Action upon a life insurance policy. The cause was tried before the court without a jury, and judgment rendered for plaintiff. Among other defenses the defendant interposed plea 2, setting up fraudulent representation on the part of the insured, as set forth in the application for insurance, concerning the condition of her health. This plea did not aver that the defendant acted or relied upon such representations in the issuance of the policy, nor did the plea contain an equivalent of such averment — this being left wholly to inference. Demurrer to this plea was sustained.
That it must appear the party alleged to have been defrauded relied upon the false statements and acted to his prejudice is well recognized by all the authorities. 20 Cyc. 39; 12 R. C. L. 422; Wall v. Graham, 192 Ala. 396, 68 So. 298; Hooper v. Whitaker, 130 Ala. 324, 30 So. 355; Bish v. Van Cannon, 94 Ind. 263. The fifth assignment of demurrer specifically pointed out this defect in the plea, and justifies the ruling of the court thereon, and renders unnecessary consideration of any other criticism of counsel in regard thereto.
Plea 4 sought to interpose as a defense the breach of a condition contained in the policy, to the effect that no obligation was assumed by the company, unless upon the date of the delivery thereof the insured was in sound health, and concluded by averring that at the time the policy was delivered the insured was "not in sound health." There were demurrers to this plea — among them, that it does not appear wherein the health of the insured was not good. This question was treated by the Supreme Court of Florida in Knights and Ladies of Security v. Glenn, 76 Fla. 592, 80 So. 516, 2 A.L.R. 1503, wherein it was held that so a general concluding averment was too vague and indefinite, and that such a plea was subject to demurrer. This holding meets our approval, and the demurrer was properly sustained.
Pleas 7 and 8 contain in substance the same defense sought to be presented in plea 5, and the ruling of the court as to this latter plea needs no consideration. In pleas 7 and 8 the defense relied upon was a release, or accord and satisfaction, to which the plaintiff filed replications setting up fraud in the procurement of the release. Demurrers to these replications were overruled, and we think properly so.
The argument is advanced that these replications set up statements on the part of the agent, which were mere matters of opinion or statements of law, and reliance is had upon Georgia Home Ins. Co. v. Warten, 113 Ala. 479, 22 So. 288, 59 Am. St. Rep. 129, and Rutter v. Hanover Fire Ins. Co., 138 Ala. 202, 35 So. 33. Whatever may be said as to other representations set up in these replications, the statement attributed to the agent that the name of the insured was not on the company's record was a statement of fact, upon which the other statements were clearly based, and it was averred that the representations, as made, were false, made with the intent to deceive, and did deceive the plaintiff, and she was induced thereby to execute the release. Moses v. Katxenberger, 84 Ala. 95, 4 So. 237; 3 Mayf. Dig. 817 et seq.; 20 Cyc. 20, 62; Tillis v. Smith Lumber Co., 188 Ala. 122, 65 So. 1015; Heinlein v. Imperial Ins. Co., 101 Mich. 250, 59 N.W. 615, 25 L.R.A. 627, 45 Am. St. Rep. 409.
The sixth plea alleges a failure on the part of the plaintiff to furnish a proof of death as required by the policy. No injury could have resulted from the action of the court in sustaining the demurrer to this plea, for the reason that the complaint alleges a waiver of this required proof, and therefore this defense was available under the plea of general issue. We are of the opinion the evidence shows action on the part of the defendant inconsistent with such requirement, and it does not appear, therefore, that the failure of such proof of death would be fatal to recovery. 25 Cyc. 885.
We are also of the opinion there was evidence tending to establish the averments of these replications. Upon careful examination of the record we conclude there was evidence sufficient to justify the judgment rendered, and it will be accordingly affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
Response to Application for Rehearing.
Upon this application counsel for appellant insist we are in error in the statement of the conclusion that there was evidence tending to establish the replications, and the argument is made that there is no proof whatever of the falsity of the averment that the name of the insured was not in fact upon the company's records. We did not deem it necessary to enter into a discussion of the facts (and such has not been our custom since the passage of Acts 1915, p. 594 — Pilcher v. Surles, 202 Ala. 643, 81 So. 585), although the record was given careful consideration upon this point; but in deference to the most earnest insistence on the part of counsel for appellant we make this brief response.
True, there was no direct proof that the statement that the name of the insured was not on the company's records was false, but this court was clearly convinced that the evidence was sufficient from which the falsity of this statement could be reasonably inferred. The policy was delivered in April, 1919, and the death of insured occurred the following September. The premiums appear to have been payable weekly, and were collected by the agents in person when they became due. The insured was plaintiff's granddaughter, and on Monday afternoon before her death on Saturday one of defendant's agents came to plaintiff's home, where the insured was then confined to her bed, and asked to see the policy, stating that the insured's name was not on the records of the company, and that it was against the law for him to accept the money, and that he could not keep the money that had been paid on the policy. Plaintiff signed the receipt and also delivered the policy to the agent. It appears, also, that the receipt book, showing the payment of the premiums, had been delivered to the defendant's agent prior to the bringing of this suit. We also gather from the record that at the time suit was brought plaintiff made demand upon the defendant company to produce the policy and receipt book, which was done and offered in evidence by the plaintiff. The policy bears the same serial number which is found in the receipt book — the latter showing the dates of payments, as well as the name or initial of the agent making the collection. The receipt signed by the plaintiff was a release to defendant company, giving the same serial number as the policy, which receipt was pleaded, as previously stated, in full satisfaction of this suit. None of the agents of the defendant company testified.
Under these circumstances we think it clearly not incumbent upon the plaintiff to offer direct proof as to the falsity of this statement, but that the court was justified from the evidence before him to reasonably infer that the statements made, including the one referred to, constituted a part of the scheme on the part of the defendant's agents to procure from plaintiff all evidences of liability growing out of the insurance on the life of her grandchild, whom they most probably knew was then lying at death's door. The court could therefore very properly infer that the name of the insured was upon the records of the company, and that the statement to the contrary was but a mere blind, and conceived merely for the purposes just mentioned.
This is the only point stressed upon rehearing, and the application will be denied.
Application for rehearing denied.