Opinion
8 Div. 238.
August 4, 1931. Rehearing Denied October 6, 1931.
Appeal from Circuit Court, Morgan County; Jas. E. Horton, Judge.
Action by Alice Bridgeforth against the National Life Accident Insurance Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Plea 10 avers that the policy sued on was issued in consideration of an application made and signed by insured, and that in and by said application insured falsely represented to defendant that he was not insured in any other company, whereas in truth and in fact he was insured in another company, etc.
Plea 11 is the same as plea 10, with the added averment that said false representations "were made with the actual intent to deceive."
Plea 13 sets up a false and fraudulent representation that insured was in good health, whereas he was not in good health.
Plea 16 sets up a provision in the policy stipulating that no obligation be assumed by the company unless insured be alive and in good health on the date of the policy, and avers that on said date insured was sick, which illness resulted in his death.
Plea 18 relies upon the false and fraudulent representation, made by insured in the application, that the beneficiary (plaintiff) was his guardian.
Plaintiff's replications assert: (1) That the premiums were paid by insured and accepted by the company with notice and knowledge of the falsity of the statements relied upon in special pleas; and (2) "that the insured was sound and in good health at the time that the policy was delivered to him, and defendant thereafter accepted premiums due on said policy with knowledge of the fact."
Lynne Lynne, of Decatur, for appellant.
The law makes invalid a policy of insurance which is procured by the insured with the advice and procurement of the beneficiary for the purpose of enabling the beneficiary to effect insurance on the life of the insured, and where the beneficiary pays the premium. Morgan, Hess' Adm'r, v. Segenfelter, 127 Ky. 348, 105 S.W. 476, 14 L.R.A. (N.S.) 1172, 128 Am. St. Rep. 343. The defendant is a corporation, and could act only through its duly constituted agents. Dartmouth College v. Woodward, 4 Wheat. 518, 4 L.Ed. 629. Premiums had to be paid to some agent, and the replications are uncertain and indefinite as to whom payment was made. Southern R. Co. v. Hobbs, 151 Ala. 335, 43 So. 844; Jackson Lbr. Co. v. Trammell, 199 Ala. 536, 74 So. 469; London Lancashire Ins. Co. v. McWilliams, 215 Ala. 481, 110 So. 909; Hanover F. I. Co. v. Wood, 209 Ala. 380, 96 So. 250.
W. H. Long, of Decatur, for appellee.
All meritorious questions in the case were decided on former appeal. There is no bill of exceptions, and for aught appearing appellant has suffered no injury from the rulings complained of. National Life A. I. Co. v. Bridgeforth, 220 Ala. 314, 124 So. 886.
This is the second appeal in this case. National Life Ins. Co. v. Bridgeforth, 220 Ala. 314, 124 So. 886. In that case the question here presented by defendant's plea 12 was settled adversely to appellant, and this court is bound by the decision there rendered.
Plaintiff's replications 1 and 2, to defendant's special pleas 10, 11, 13, 16, and 18, present a complete answer to said pleas, and the demurrers to said replications were properly overruled. Both of the replications set up a waiver by the company of the defense alleged in the pleas and placed upon the plaintiff the burden of proving the allegations.
The cases of London Lancashire Ins. Co. v. McWilliams, 215 Ala. 481, 110 So. 909. and Hanover Fire Ins. Co. v. Wood, 209 Ala. 380, 96 So. 250, cited by appellant, are not in point. In those cases the allegation in the replication undertook to bind the company to a waiver by the act of an agent without alleging the agent's authority. In the instant case the allegation is that the defendant did the act. It then became a question of evidence on the trial as to the waiver, and in the absence of a bill of exceptions, we presume the proof to have been made.
We find no error in the record, and the judgment is affirmed.
Affirmed.