Opinion
3 Div. 679.
October 23, 1924. Rehearing Denied November 27, 1924.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
John S. Tilley, of Montgomery, for appellant.
The complaint was defective. Eminent Household v. Gallant, 194 Ala. 681, 69 So. 884; U.S. H. A. Co. v. Veitch, 161 Ala. 631, 50 So. 95; Locomotive Engineers. v. Hughes, 201 Ala. 59, 77 So. 352; Ex parte Commonwealth Ins. Co., 204 Ala. 562, 86 So. 522, Pence v. Mutual Co., 180 Ala. 584, 61 So. 817; Nat. Cas. Co. v. McCarn, 207 Ala. 322, 93 So. 31. Replication 2 was defective. 1 C. J. 443. Travelers' Ins. Co. v. Houston, 3 Willson, Civ. Cas. Ct. App. § 429. A nonexpert, to testify as to sanity or insanity, must be shown to have had an intimate acquaintance with the person in question. Dominick v. Randolph, 124 Ala. 564, 27 So. 481; Pritchard v. Fowler, 171 Ala. 669, 55 So. 147; Jones v. State, 181 Ala. 79, 61 So. 434; Odom v. State, 172 Ala. 384, 55 So. 820; Woodward Ir. Co. v. Spencer, 194 Ala. 291, 69 So. 902; Bates v. Odom, 198 Ala. 570, 73 So. 921; Ford v. State, 71 Ala. 397; Barnett v. Freeman, 197 Ala. 145, 72 So. 395.
L. A. Sanderson and Thos. B. Hill, Jr., both of Montgomery, for appellee.
Count 1 was not defective. Sov. Camp v. Reed, 208 Ala. 458, 94 So. 910; Travelers' Ins. Co. v. Whiteman, 202 Ala. 388, 80 So. 470; W. O. W. v. Alford, 206 Ala. 20, 89 So. 528; Travelers' Ins. Co. v. Dupree, 17 Ala. App. 131, 82 So. 579. But, if so, overruling demurrer thereto was error without injury. Gulf States Steel Co. v. Carpenter, 205 Ala. 162, 87 So. 580. Replication 2 was not defective. Gulf States Steel Co. v. Carpenter, supra; Travelers' Ins. Co. v. Dupree, supra; Marceau v. Travelers' Ins. Co., 101 Cal. 338, 35 P. 856, 36 P. 813; 1 C. J. 499. Whether a nonexpert should give an opinion as to insanity of a party is discretionary with the trial court. Parrish v. State, 139 Ala. 42, 36 So. 1012; Dersis v. Dersis, 210 Ala. 308, 98 So. 27; Melvin v. Murphy, 184 Ala. 188, 63 So. 546; Johnston v. Johnston, 174 Ala. 220, 57 So. 450.
The suit is upon a policy of life insurance.
There was demurrer to the complaint. The Code form for the complaint requires that the period covered by the policy and the date of the death be averred, in order that the pleading may show whether or not death occurred pending the life of the policy. Pence v. Mutual Ben. L. Ins. Co., 180 Ala. 584, 61 So. 817; Eminent Household Columbian Woodmen v. Gallant, 194 Ala. 681, 69 So. 884; Sov. Camp W. O. W. v. Ward, 196 Ala. 327, 71 So. 404; Locomotive Eng., etc., Ass'n v. Hughes, 201 Ala. 58, 77 So. 352.
In Ex parte Comm. Life Ins. Co., 204 Ala. 561, 86 So. 522, and National Casualty Co. v. McCarn, 207 Ala. 322, 93 So. 31, the counts, held substantial compliance with Code form, contained averments that the insurance was for the term indicated and from year to year thereafter, "as the premiums were paid"; that at the time of the death of assured the premium on said policy had been paid or duly tendered, "and the said policy was in force and effect." Travelers' Ins. Co. v. Whitman, 202 Ala. 388, 80 So. 470; Woodmen v. Alford, 206 Ala. 20, 89 So. 528. In the present case count 1 contained no sufficient averment of facts to show that the policy declared upon was in full force and effect at the time of the death of assured. That count was subject to the appropriate ground of demurrer directed thereto.
Count 2 was sufficient against the ground of demurrer assigned. The averments thereof were of facts and not mere conclusions of the pleader. Because of the sufficiency of the second count, the overruling of demurrer to count 1 was error without injury. The proof required under each count was the same. That is to say, the averments of facts contained in count 2 embraced the conclusions averred in count 1. There was no reversible error in rulings on demurrer to the complaint. Gulf States Steel Co. v. Carpenter, 205 Ala. 162, 87 So. 580.
Replication 2 required a materially different degree of proof than did replication 4. The rule is that in order to render an injury unintentional and accidental under policies of accident insurance by reason of the insanity of the person who inflicted the injury, there must be such a diseased and deranged condition of the mind as to render the person incapable of distinguishing right from wrong in relation to the particular act with which he is charged. 4 Cooley's Briefs, Ins. p. 3211; 1 C. J. 443; Travelers' Ins. Co. v. Houston, 3 Willson, Civ. Cas. Ct. App. § 429. The test is the same as in criminal cases. Marceau v. Travelers' Ins. Co., 101 Cal. 338, 35 P. 856, 36 P. 813. This is stated in Anderson v. State, 209 Ala. 36, 95 So. 171; Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193.
Appellee cites general authorities, including Marceau v. Travelers' Ins. Co., 101 Cal. 338, 35 P. 856, 36 P. 813, and two cases from this jurisdiction viz.: Gulf States Steel Co. v. Carpenter, 205 Ala. 167, 87 So. 580 (suit for injuries inflicted while in service of master), and Travelers' Ins. Co. v. Dupree, 17 Ala. App. 131, 82 So. 579 (an unprovoked assault), which are inapt.
The provisions of the policy sued on, among others, are:
"This policy does not cover suicide (sane or insane) nor any venereal disease; nor any disease not common to both sexes; nor aeronautics; nor military or naval service in time of war; nor injuries intentionally inflicted upon the assured by himself or by any other person except by burglars or robbers; nor the assured while in the tropics or any part of Alaska or the British possessions in North America, north of the sixtieth degree of north latitude, and there shall be no liability whatever against the company in any such cases."
Plea 1 sets out said provision of the policy, and avers:
"Defendant says that said Hannon was intentionally shot by one Hazzard who was at the time of said shooting neither a burglar nor a robber, and that said Hannon died from said injury on the day on which said shooting occurred. Wherefore defendant says that it is not liable in this action."
In overruling demurrer to replication 2 reversible error intervened.
The rule as to a nonexpert witness testifying concerning sanity or insanity has been long and firmly established in this jurisdiction. The proper predicate must be laid; that is, (1) that the acquaintance of the witness with the person whose sanity or insanity is the subject of inquiry is of an intimate character, and (2) that the witness has had an opportunity for observation sufficient to enable him to form a correct judgment, before such witness may give an opinion. Lewis v. Martin, 210 Ala. 401, 98 So. 635; Woodward Iron Co. v. Spencer, 194 Ala. 285, 69 So. 902; Bates v. Oden, 198 Ala. 570, 73 So. 921; Barnett v. Freeman, 197 Ala. 145, 72 So. 395; Johnston v. Johnston, 174 Ala. 220, 57 So. 450; Odom v. State, 172 Ala. 383, 55 So. 820; Pritchard v. Fowler, 171 Ala. 662, 55 So. 147; Jones v. State, 181 Ala. 63, 61 So. 434; Dominick v. Randolph, 124 Ala. 557, 27 So. 481; Ford v. State, 71 Ala. 397.
There was error in the admission of the evidence of Mr. Brassell, against due objection of defendant, to the effect that Hazzard "was very much insane," notwithstanding the liberal discretion which trial judges may exercise as to the sufficiency of predicates.
The judgment of the circuit court is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.