142 So. 388 | Ala. | 1932
The suit is upon a life insurance policy issued in May, 1927, on the life of Eugene Brown, who died in October, 1927. Defendant pleaded misrepresentation by the insured at the time of the application for the insurance, as to the condition of his health, the pleas disclosing the serious nature of the disease with which insured was at the time afflicted which increased the risk of loss and caused his death earlier than it would have occurred had he been free therefrom. The pleas tendered the premiums paid, with interest thereon, and defendant deposited the same into court.
The demurrer to the pleas takes the point they fail to allege a tender of the premiums paid within a reasonable time after the discovery of the alleged misrepresentations. Appellant's contention is that the insurance company must within a reasonable time after the discovery of the fraud or misrepresentations rescind the contract and offer a return of the premiums collected, failing in which it cannot defend and avoid liability on account of such fraud, even though the requirements of our statute (section 8365, Code) have been met by a payment of the premium money into court. It is not insisted that any of the authorities cited by appellant from this jurisdiction (Emerson-Brantingham Implement Co. v. Arrington,
The defendant in the instant case seeks no affirmative relief, nor the benefit of the doctrine of rescission, but merely a defense to the suit on the policy for fraud or misrepresentations. As said by the Minnesota court in Taylor v. Grand Lodge, A. O. U. W.,
Though not here directly in point, yet it would seem the theory upon which appellant proceeds runs counter to the holding of this court in National Life Accident Ins. Co. v. Propst,
The case of Taylor v. Grand Lodge, supra, contains an interesting discussion with citation of numerous authorities tending to show that, in cases of actual fraud by the insured, he is not due to have premiums paid returned upon the theory that one should not profit by his own wrong. See, also, 14 R. C. L. p. 1193; Prestwood v. Carlton,
Defendant has complied with this statute, and we are of the opinion it was intended and is to be properly construed as stating defendant's full duty upon the question of a return of the premiums. A like statute was so interpreted by the Court of Appeals of Missouri in Dye v. New York Life Ins. Co.,
The cases of Allen v. Standard Ins. Co.,
Having determined therefore that our statute controls, a discussion of the authorities cited by appellant from other jurisdictions would serve no useful purpose.
Replication to defendant's plea 5 alleges as one of the reasons why defendant should be held liable, notwithstanding insured's fraud, that defendant's own physician made the required medical examination. The demurrer thereto was properly sustained under the authority of Reliance Ins. Co. v. Sneed,
We have discussed the questions presented in brief for appellant, and find nothing justifying a reversal of the cause. The judgment will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.