157 So. 880 | Ala. Ct. App. | 1934
Lead Opinion
All of the questions necessary to a decision in this appeal are contained in count 1 of the complaint and defendant's plea 5, to which plea demurrer was overruled.
In the case of Prudential Life Insurance Company v. Gray,
It may be that in an insurance contract where there was a clear and definite provision as to the time of making proof of disability, and a forfeiture provided in case of failure, the insured would be held to the plain terms of the policy as a condition precedent to liability on the part of the insurer. In this case, however, that question does not arise and is not decided.
In the instant case, the provisions in the policy relative to notice, "If the insured * * * and before default in the payment of any premium and before the anniversary nearest the sixtieth birthday of the insured and while this policy is in full force, shall furnish to the company, due proof of disability," *260
etc. There is nowhere in the policy any specific forfeiture of any right by reason of a failure to furnish the proof at a designated time. The payment of indemnity to the insured is one of the valuable considerations in the policy moving from the insurer to the insured and for which the insured has paid and each year continues to pay a premium. This consideration is not forfeited or lost by reason of a condition precedent without a clear, specific provision in the contract to that effect. United Benev. Soc. of America v. Freeman,
The plaintiff contracts for and there is issued to him by the defendant a certain policy of insurance in 1918; this policy provides for certain benefits passing to plaintiff, among which is an indemnity for and on account of total disability, up to a certain age limit; the defendant charges and receives certain annual premiums based upon this risk. There is a requirement of notice of such disability at a certain time, but no specific agreement as to forfeiture in case of failure. The disability actually occurs within the age given in the policy, but no notice is given at the time, and the policy continues in force and plaintiff continues to pay the premium. If the required notice and proof is made during the life of the policy, there is no forfeiture; but liability is deferred. The demurrer to plea 5 should have been sustained.
Pleas 6 and 7 were bad in that they stated as a conclusion that "plaintiff did not submit said proof during the time the said contract or policy was in full force." The pleas should have stated the facts causing the termination of defendant's obligations under the policy. Dwight Mfg. Co. v. Holmes,
The judgment is reversed, and the cause remanded.
Reversed and remanded.
Addendum
Affirmed on authority of Dovel v. National Life Insurance Co.,