Ex Parte Commonwealth Life Ins. Co., 86 So. 522

Ex Parte Commonwealth Life Ins. Co.

86 So. 522 | Ala. | 1920

The count of the complaint was not subject to defendant's demurrer. It is a substantial compliance with form No. 12 of the Code, and the averment that the premiums had been paid or duly tendered the defendant was sufficient to charge that the policy was in force at the death of the insured. The plaintiff did not have to aver the facts or quo modo constituting the tender. Form No. 36, cited by appellant's counsel, applies to a plea of tender, and said form provides for setting out the amount of tender, etc.

As we understand the appellee's replication No. 2, it in effect sets up an extension of time, or an agreement, as to the time when the extra charge for going into the war should be paid; that is, a waiver of a forfeiture of the policy for a nonpayment of this extra charge at the time of entering the forbidden service without the payment of same. It does not set up the waiver of a condition precedent essential to making the policy operative, as considered in the case of Powell v. Prudential Co., 153 Ala. 611, 45 So. 208, and other cases relied upon in appellant's brief. Here, the pleas set up a forfeiture of the original policy, and not that it had never become binding and effective, and the replication sets up a waiver of what it claims to be a forfeiture, and false under the influence of the case of United States Co. v. Lesser,126 Ala. 568, 28 So. 646.

The other insistences of error in the opinion of the Court of Appeals are either without merit, or relate to a finding of or an application of the facts to the law, and which we do not review. Postal Telegraph Co. v. Minderhout, 195 Ala. 420,71 So. 91.

The petition for the writ of certiorari is denied.

ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.