*1
Y¡\
LIBERTY LIFE NATIONAL INSURANCE COMPANY al. et
Gaston WELDON.
Supreme Court of Alabama.
Nov.
Rehearing Denied March
173 *4 Young, Ralph
Spain, Gillon & B. Tate Young, Birmingham, and Frank M. Reneau, Wetumpka, Liberty & Reneau Ins. Nat. Life. Co. Robinson, Jr., Nashville, M.
Walter Tenn., Simpson, A. Chas. B. Robinson Jas. Simpson, Lange, Robinson & Somer- ville, Birmingham, and Robt. S. Milner Holley, Holley, Milner & Wetumpka, for National Life & Acc. Ins. Co. Hill, Jr., Montgomery, T. B. W. H. Sad- ler, Jr., Birmingham, Sanford, and Edwin Wetumpka, for Southern Life & Health Ins. Co. *5 Hobbs, & Hobbs and Truman
Godbold appellee. Montgomery,
177 *7 LAWSON, Justice. by suit
This is a Weldon, Gaston who sues as the father of Dianne Wel- don, deceased, his daughter, minor under Title Code § the so-called statute, against Liberty homicide National Company, Life Insurance corporation; & National Life Accident Insurance Com- corporation; pany, a and Southern Life & Company, Insurance corporation. Health policies in- issuing of wrongful acts with refer hereafter sometimes will We applicant-beneficiary surance in which his de- plaintiff, to as Weldon Gaston the life of the had the defendant Shirley, and to as ceased child knowledge charging insured, National, Count with Liberty companies insurance interest on of insurable of the want Life. and Southern Life National defendants, alleg- Count part of the 1, 1952, May when she on Shirley died of the exercise ing knowledge or years and one-half two approximately was should the defendants diligence reasonable of the de- death each her Prior to age. a lack of insur- there was have known that companies issued a had insurance fendant are 3 to inclusive able interest. Counts Shirley’s insured. life was policy wherein part on the acts grounded negligent on in the Liberty National policy of The defendants, 3 and alleg- Counts with December was issued on amount $500 placed the defendants ing that the acts of policy Life’s National 1951. danger, a zone of child in insured $1,000 or about was issued amount her of harm to unreasonable risk policy The of Southern April issuing the alleged the defendants ille- $5,000 issued in amount of Life in knew, gal contracts of insurance March, part Each of latter diligence exercise reasonable should application policies issued on an those known, beneficiary, that the Mrs. Den- Dennison, who aunt- Earle was an of Mrs. nison, had no insurable interest the life is, Shirley, she was the wid- in-law of 4 alleges insured. Count a negligent Shirley’s brother of mother. Each of a ow alleges act. Count 5 negligent act and provided policies that the death ben- pleads going facts to show a lack of in- paid to Mrs. Dennison. The South- efits be Dennison, surable interest in Mrs. the ben- provision did contain ern Life eficiary. Each of the counts contains an Shirley’s the effect that mother was a con- averment to the effect that the wrongful or beneficiary. Liberty tingent National negligent acts of the defendant policy was delivered to Mrs. Dennison on companies concurred or united proxi- day of its about issue. The mately contributing causing to or the death by National Life issued had not been de- plaintiff’s minor child. to Mrs. Dennison livered at the time of complaint To as last amended and to Shirley’s At death. that time it was in the each of its counts the defendants separate- possession agent local to whom it ly demurred. The demurrers were over- been sent home office in Nash- ruled. defendants’ motions for change ville, Tennessee. The of Southern *8 of venue were denied. The defendants Life was delivered to Mrs. during Dennison separately plead general issue in short part March, of the latter by consent in the usual form. There were plaintiff theory on seeks to re- The judgment verdict and for the in the damages from defendants is that cover $75,000. amount of The motions for new insurable interest in Dennison Mrs. by trial filed each of the defendant insur- Shirley’s life and that the defendants knew companies having ance been overruled, each fact; and, that known have should appealed of them has to this court. wrongful by negligent is- reason and given We to the have thousand-page rec- policies “illegal” of insurance suance of in this case and to the ord extensive briefs Shirley murdered with Mrs. parties for the of counsel the laborious proceeds. hope collecting the insurance of examination which case of impres- first proceed sion deserves. We state, to the on submitted as case can, briefly as we conclusions complaint which con- we have plaintiff’s amended regard to attained in the several counts, assign- in each dam- of which six of sisted ments error which are $100,- upon of insisted the amount in in claimed ages were on the brief filed here behalf of the charge appel- 2 the defendants 1 and 000. Counts
179
on,
assign-
ful contracts killed
child
said minor
first those
We
consider
lants.
will
to-wit,”
by
etc.
which are relied
ments of error
below.
appellants,
all of
the defendants
If we
argument
understand the
appel-
lants, it is
presumed
that Mrs. Dennison is
1 of
Error No.
Assignment
law,
is,
known the
that the
con-
in
erred
The Court
“1.
is:
appellant
each
tracts of
void,
illegal
were
and
demurrer
defendant’s
overruling this
and hence those contracts
not have
could
assign
This
amended.”
last
complaint as
served as an inducement to kill.
Vinson,
v.
Vinson
general.
not too
ment is
support
argument' appellants
of their
is not neces
It
259,
54 So.2d
Ala.
256
rely upon
State,
477,
Gooch v.
249 Ala.
31
of error
separate assignment
sary to make
776,
So.2d
1297,
174 A.L.R.
a criminal
upon.
relied
of demurrer
ground
each
as to
case
necessary
concerned
149,
elements
66 So.2d
Brewer,
Ala.
Brewer
to constitute the crime of forgery wherein
under such
But
cited.
450,
there
and cases
held,
part: “So,
in
we
given
check
those
generally treat
assignments we
Sunday, unless
purposes
for one of the
upon in
demurrer insisted
grounds of the
permitted by law as
Sunday
set forth in the
well
having been
tak
as
appellant
brief of
21,
9,
statute
1940],
Title
Code
would
[§
Darden,
Ala.
en. Groover v.
void
and
subject
forgery.”
cited;
Ry.
Southern
Co.
cases
So.2d
249 Ala.
case for
reasons.
First,
estopped. The
the
plaintiff
demurrers which
understand the
the
was
we
accepted
appellants
argued
in brief
filed
policy had
issued
been
paid
here,
overruling
for
premiums
thereon
hold that error in
the
we
his consent and
Second,
appear.
twenty-three years.
com-
demurrers is not
the
made
over
to the effect
averments
plaint
contained
Assignment of Error No. 8 of each
danger at the hands
inwas
that
appellant challenges the action of the trial
the
took
counsel
his
Plaintiff’s
of
sister.
overruling
in
for
court
their motions
The
void.
was
position that
the
support
of
mo-
change
venue.
of those
that
if void
observed
court
New York
tions,
they
wherein
averred in
that
effect
di-
judgment
for a
no occasion
there was
impartial
they
get
could not
a fair and
of
and cancellation
recting the surrender
County,
trial
in Elmore
the defendants
policy.
the
newspaper story
relied in the main on a
case shows
complaint in
instant
The
the
appeared
this suit
concerning
which
in
application
the doctrine
of
no basis for
22, 1953,
the October
issue
of
Wet-
in-
that
estoppel
it does show
of
Herald,
newspaper
umpka
widely circu-
hands of
danger
in
at the
sured’s life
County.
newspaper
in Elmore
The
lated
opinion
are of the
beneficiary. We
story pointed
theory
out the
which
Peck-
bill in the
of the
averments
that the
plaintiff sought
damages
to recover
from
entirely dif-
present an
Case, supra,
ham
defendants,
the amount
damages
of
presently before
from that
ferent situation
claimed,
ruling
of
trial court
on the
in
case is
holding
that
and that
us
demurrers,
the date the case was set for
point.
in
here
trial, and
fact that it
questions
involved
of
33, supra,
legal pro-
considerable
ground
Ground
fession and to the insurance
which is
business.
adequately
demurrer
ar-
story also called
fact,
attention to
brief filed here on
al-
gued in
behalf of the
ready
people
Alabama,
known
most
paragraph
The last
in
appellants.
of
Mrs.
support
Dennison had been
Assignment
in
of
electrocuted
argument
of
the murder
“In
for
No.
reads:
addition
she
Error
the first white woman to
are
appellants
opinion
foregoing,
electro-
for crime in
cuted
Alabama. The
several demurrers to
news-
their
com-
paper account was concluded with
amended should
these
plaint as last
have been
parentheses:
$64,000
in
words
“Not
for the additional
reasons
sustained
as-
question
$100,000 question.”
but the
support
this brief in
signed elsewhere
adopt
They
No.
of error
assignment
matter
granting change
assigned
elsewhere
herein
argument
said
of venue
addressed
to the sound dis
assignment
error No. 24
support
cretion of the trial court. Littlefield v.
support
argument
of this
as additional
State,
36 Ala.App.
63 So.2d
cer
Assignment of Error
of error.”
assignment
denied,
532, 63
tiorari
So.2d
general
the refusal of the
24 relates
No.
parte Morrow,
Ex
requested
the defend-
charge
affirmative
Newspaper publicity
not neces
does
argument made
and the
ants
sarily
change
grounds
constitute
alleged
is directed
assignment
of that
State, supra.
venue. Littlefield v.
We see
allegation.
No
proof, not
failure
newspaper
nothing in the
account
is referred
in that
demurrer
ground
justify
holding
us
would
trial
not feel called
and we do
argument
denying
its
court abused
discretion in
attempt
argument
analyze
*10
change
for
of venue. Nor could
motions
parts
might
which
of it
part or
some
find
in
put the
court
error on the
we
trial
mere
one or more of the
that
show
to
said
be
of counsel for
defendants
statement
demurrers
grounds
innumerable
get
could not
that the defendants
a
below
taken.
well
were
provided.
after
she
County
Shortly
the Dennison
because
Elmore
fair
trial
very
Shirley
over
consumed her drink
became
aroused
county were
people
that
Mrs.
murdered
nauseated. After the nausea subsided
Mrs. Dennison
that
the fact
in a
Dennison left the room
returned
but
Shirley.
short
bottle
shaking
partially
time
a
filled
from
resulted
error
that no
holdWe
Shirley
Coca-Cola,
gave
which
from
she
a
for
motions
rulings on the
trial court’s
violently
Shirley
drink.
again became
present-
properly
venue, even if
change
un-
nauseated and that condition continued
appellee,
ed,
questioned
is not
At
til
she became almost unconscious.
v. San-
City,
B. R. Co.
M. &
see Kansas
Shirley
mother’s
taken to
insistence
was
ders,
293,13
Ala.
So.
Wetumpka in search of a doctor. She
Wetumpka
hospital
was admitted
to
Error 24 of each
Assignment of
shortly after her arrival
She died
there.
erred in
appellant reads: “24. The Court
within time after
comparatively short
jury,
refusing
give
to
failing and
to
hospital.
she was admitted
defendant,
to
request
the follow
at the
of this
charge you
T5.
I
charge:
ing written
Rehling,
Dr.
the Director of the De-
you
in this
that
believe the evidence
partment
state,
of Toxicology of this
tes-
”
plaintiff.’
you
for
cannot find
case
autopsy
performed
tified that an
which he
assignment
review the
considering this
we
quantities
revealed arsenic in fatal
in Shir-
light
most favorable to
evidence
ley’s body
expressed
opinion
and
that
plaintiff,
an affirmative instruc
when
the child
as the result of
died
arsenic tak-
party
requested
is refused and the
who
tion
through
en
her mouth. He testified that
appeals,
entire
charge
evidence
he found traces of arsenic on articles of
light
most favorable to the
viewed
clothing
by Shirley
worn
Den-
Mrs.
party
opposite
and where reasonable in
nison at the time the drinks were served
may
party
be drawn
to
ferences
adverse
and he further
testified that he found
requested
charge,
the action of
who
cup
traces of arsenic in the
from which
refusing
charge
must
court
trial
Shirley
appellants
drank.
do not con-
Aircraft
affirmed.
Sales & Service v.
tend here that the evidence was not alto-
Gantt,
Hasty
So.2d
gether ample
support
jury finding
Hasty,
Ala.
girl.
Dennison murdered
Mrs.
the little
Queen Insurance
America,
Adams v.
Co. of
572, 88
So.2d
The evidence
also clear to the effect
Mrs. Dennison
murdered the child in
The evidence in this
beyond
case shows
payable
order
collect insurance benefits
peradventure
Shirley
was murdered
her
the child’s
death. We will
briefly
Mrs. Dennison.
will
We
sum-
out all
not undertake
set
of the evi-
marize the
support
facts which
tend
dence which tends to
that state-
early
May
statement.
In the
afternoon of
ment, for the defendants do not
contend
plaintiff’s
Mrs.
drove
Dennison
simply
was
the case.
We
home,
County,
in rural Elmore
where she
call attention to one incident which we
plaintiff,
found the
his
their
wife and
two
clearly
why
think
shows
Mrs. Dennison
children,
Shirley.
Shortly
Orville and
poisoned the child. Mrs. Dennison
awas
plain-
after Mrs. Dennison’s arrival
hospital
Shirley
nurse in the
to which
was
tiff and
son left
to attend
his
home
was directed by
admitted
she
the doc-
to some
At the
duties around the farm.
Shirley
charge of
administer
tor
aid
time of their return home Mrs. Dennison
By
patient.
late afternoon
when it
engaged
serving
was
some soft drinks
apparent that
was dying,
Mrs.
nearby
purchased
which she had
at a
store.
hospital
ap-
left the
and drove
orange
Mrs. Dennison
an
drink
divided
proximately twelve miles to the home of
Shirley.
Shirley’s
between
Orville
pay
premium
agent
cup
poured
drink
a little
that Mrs.
into
*11
Middlebrooks,
Life & Accident Ins. Co. v.
policy which was
Liberty National
on the
Life
84; National
Ala.App.
170 So.
lapse.
about to
Ball,
Miss.
&
v.
Accident Ins. Co.
came
which
the harm
it is clear that
So
Insurance
Cooley’s
on
127 So.
Briefs
not caused
was
girl
plaintiff’s little
(Second
pp. 386, 387.
Ed.), Vol.
defendants,
any
of
act of
the direct
Den-
of Mrs.
intervening act
by the
but
certainly
in this
Most
the evidence
her
her life for
nison,
paid
has
with
who
that
not
as a matter of law
case does
show
crime.
horrible
in
Mrs.
Dennison had an insurable
Shirley
ex
she had a reasonable
because
indicated,
plaintiff
as before
But
pectation
profit
advantage
possible
of
or
not
harm would
effect,
says, in
that
Shirley.
to her from
life
the continued
if the defend-
girl
his little
have come
Helmetag’s
Miller,
Adm’r v.
negligently
wrongfully
not
had
ants
Ins,
George,
Life
Commonwealth
Co. v.
illegal
alleged
Mrs. Dennison
issued
supra.
provide
Mrs. Dennison did not
life.
Shirley’s
covering
policies
They
home
Shirley.
in different
lived
these
against
proceeded
apart.
has
towns
several miles
lived
Den-
theory that Mrs.
on the
in the
defendants
home of
parents
her
her brother
with
insurable interest
an
not have
did
nison
sister and
received her entire
policies
hence the
Shirley and
parents.
life of
from
her
She saw Mrs. Denni
against
and void as
illegal
were
only
involved
son
when the latter made her infre
were
the defendants
policy;
that
public
quent visits to the home
Shirley’s par
policies
issuance
negligent
ents. Shirley
spent
night
one
no such interest
knew there was
they
that
under a roof with Mrs. Dennison and that
diligence
reasonable
to exercise
failed
was on an occasion when
family
her entire
issuing the
before
fact
spent
ascertain
night
in the Dennison home and
duty
awas
although there
policies,
that visit was
Dennison,
made while Mr.
so;
per-
the failure to
and that
do
them to
Shirley’s
brother of
mother,
living.
was
proximate
duty
in fact the
was
form
Mrs.
given
Dennison had
Shirley a few
death.
the child’s
presents
cause
they
very
were of
little value.
sufficient
show a
evidence
Since the
was authorized un
In the brief
interest.
insurable
lack
der the
evidence
find that Mrs. Denni
appellants
reference
behalf
here
filed
son had no insurable interest
in the life
of National Life &
the case
made
is
Shirley,
a finding
policies
Davis,
179 Ark.
v.
Ins. Co.
Accident
insurance were illegal and void as repug
holds,
effect,
312, which
17 S.W.2d
public
nant
policy naturally followed.
niece, standing
relationship
aunt and
In 1884 in the case of Helmetag’s Adm’r
an
provide
insurable
alone,
sufficient
is
Miller,
supra, Mr.
Somerville,
Justice
this
not the law of
But such
interest.
writing
court,
for the
part
said in
as fol-
contrary.
held
We
state.
lows :
George,
Ins. Co.
Life
Commonwealth
principle of the
“No
170 A.L.R.
law of
life-in-
day
is at this
holding
surance
settled,
better
cited. Our
authorities
1032, and
doctrine,
than the
that a
most of the courts
that of
taken
accord
is in
person upon
out
one
Cooley’s
country.
Briefs on
See
life of
another,
1, p.
Ed.), Vol.
he has no
(Second
insurable
Insurance
interest,
illegal
and void,
an aunt
Moreover,
repug-
Mrs.
public policy.
nant to
an aunt-in-law and
Kent’s
Shirley but
Com.
(11th
462-63.
Ed.)
Such
in holding
in accord
contracts
to be
are
seem
courts
aptly
‘wager policies,’
termed
relationship in and of
does
itself
and are
in-law
an
higher
dignity,
entitled to
interest.
National
sustain
*12
as-
effort to
of insurance
reasonable
specu-
made
law,
gambling
than
eye
of
fact
did
certain whether
Dennison
Mrs.
probable
as to
lations,
bets
idle
life.
Shirley’s
an insurable
is
have
interest
There
life.
human
duration of
interest
insurable
as to
no limit
apparently stated
Mrs. Dennison
life;
own
his
may
which a man
in
agents
defendant
of each
of
why a
reasons
there are
but
forcible
Shirley’s
companies
surance
was
she
that
permitted
not
stranger shozdd
mere
relationship
aunt
on
because
is shown
whose
one
upon the
spectdate
life of
shown,
application.
each
But as we have
to him
bring
existence woidd
continued
relationship
was
standing alone
profit or
possible
expectation
no
of
interest
sufficient to
an
sustain
at common
wagers,
advantage. All
and,
fact,
an
Mrs. Dennison was
only such as
law,
illegal, but
were
aunt-in-law.
or sound
morals
contrary
good
were
The stat-
Chitty,
policy.
Contr.
will
briefly
possible
We
state as
by
all contracts
make
utes
this State
of
evidence as it relates to the issuance of
void.
wagering
way
gaming or
of
policies,
statement,
the insurance
Bibb,
1876, 2131;
Code,
Hawley v.
course,
§
based
the evidence
fa-
most
be,
may
this
However
company’s Shirley’s replied policy that could not written be on $5,000 policy a' to obtain sought Shirley by in- until had been she was examined but Liberty National from life family doctor. No was policy could such examination a Bailey that by formed Liberty parents Shirley’s ever made and not did in Included be written. not policy know agents until after her death that the to its instructions book of National’s had fact been persons issued in March of 1952. on “Applications rule: was Keener by applica- forwarded Mrs. Dennison’s signed age must’be years of ten under tion the district office was her own where it re- or in his parent guardian or January ceived on pro- According life the name not in name and testimony, Keener’s only however, he did one further act stated, that Bailey posed.” remained to and required be done company was for Mrs. his know whether not get Dennison to a stating medical policy written certificate where a was parental consent Shirley ap- had been signed by parent examined a doctor child. Neither on a who her good found that one or knew health. Keener insurance plication for went to Mrs. Dennison inquired Dennison by Mrs. until about made been had delay. Nearly two far as their child. As months death of after after the application was determine, Liberty made taken National Mrs. Dennison ob- can we tained a medical Den- certificate. Mrs. whether no to determine certificate effort not Shirley’s by executed family doctor, interest had an insurable nison by a even doctor interrogatories fact, in answer connected with the hos- life. pital where Mrs. position that its Liberty National took worked as a nurse. It was any instructions con- executed given not agents were doctor who did not live or requirement work in any Wetumpka as to cerning or in community type issued to Mrs. where the family Weldon lived. Mrs. Dennison Dennison, contending such interest was drove to the doctor’s office in another policy. type The latter town and necessary in that false state- ments and prior later on in this because of will be dealt with contention friendship, although she had not opinion. seen him in eight years, persuaded him sign a medical application for the Southern Life certificate stating that he had examined from Mrs. policy was obtained Dennison on when, child fact, he had never seen 24, 1952, Keener, by Eugene who January her. Keener knew that Shirley was living agent company for that had been for with parents her but apparently was not at years. Keener met Mrs. Dennison fourteen all concerned about the matter of insurable application at day the was taken on the interest or lack of it. He he stated that Wetumpka hospital in where work- she had never been given any instructions before, had seen her but ed. He never his company concerning subject. $5,000 policy application her for a accepted When Keener application took the for the accepted Shirley’s from Mrs. on life policy he told Mrs. Dennison of his com- payment of Dennison the sum of $8.20 pany’s rule to the effect that before a premium. first At that time Keener her could written on one family child in the parents, Shirley seen or her never there must be at least the same amount day he to the later on the same drove every other member of the compliance with rule Weldon home family. Mrs. Dennison apparently satis- company certify company he his fied Keener as point to this by merely tell- the child.” When Keener that he “has seen ing Shirley him that member saw home he arrived at Weldon of her family whose life was not insured He told Mrs. Mrs. Weldon. Weldon $5,000 words that effect. Keener to take out an Dennison wanted Mrs. apparently Upon was not Shirley. being interested pursuing policy on educational further, shown reasonable although as did undertake exercise the matter beneficiary very humble care not to issue to a made visit above he lived. The without insurable interest. Weldons which the home in policy is labeled Life Southern “Juvenile The conclusions we it did Policy” although Endowment *14 above, namely, reached the evidence that 2035, time year at which the until mature was Shirley sufficient to show that than more have been juvenile would the policies murdered and the were void be age. years of eighty-five were, cause of lack of insurable interest and National Life application for the effect, not, negligently do issued early March or in late policy taken course, liability determine the of the de Oxford, that an April by agent S. M. fendants. For all negligence is not ac to Mrs. company, had never talked who tionable. be To actionable it must be ap- day the prior the the duty breach of a which the defendant the time he took was obtained. At plication plaintiff owed the as an individual or one knew that Mrs. application Oxford the (Stowers of a class Co., v. Dwight Mfg. Wetumpka, Dennison, working in while 252, 202 Ala. 90) 80 So. plaintiff and the and that lived in Holtville lived must not show causal connection be Claud, community parents in with her tween negligent breach of the duty but miles from Holtville and several situate that such negligence proximate was the Mrs. Dennison Oxford Wetumpka. told injury. cause Alabama Power Co. dependants no but made no that she had Bass, 586, 218 Ala. 119 63 So. A.L.R. Shirley. representation supported that she question as to answer to a what below, The defendants appellants found, “Well, replied: he he interest here, assert with emphasis considerable policy an educational that she wanted fact briefs filed in this court that there was no parents and the fact that her her niece for * duty * * on them to determine whether Mrs. pay for it. couldn’t afford Dennison at the policies time the were is- Well, coupled with that fact she that sued had an insurable interest in the life always doing something she was said plaintiff’s daughter. minor Of buying it and things. child and shoes course, if there was no duty such the de- just seemed interested in the child She fendants were entitled to general affirm- highly.” on it Oxford commented she went ative charge hypothesis, requested. as days a few re- the Weldon home after he application. is in ceived the The evidence Does a company life insurance have the direct conflict to what occurred on that duty to use issue, reasonable care not to light occasion when most bttt viewed in policy of life insurance in favor of a plaintiff favorable to the it shows that beneficiary who has no interest in the con- Weldon, plaintiff, Mr. Oxford he told tinuation of the life the insured? anybody did not taking want insurance out No case has any on his come to children and that needed our attention if he where specific question insurance he has would contact Oxford. The been considered by any But evidence for court. we opinion is the effect are of the exists, such a duty duty neither knowledge he nor his for there any wife had is upon all to exercise the fact reasonable care not to had been injure issued. another. Weston v. National Man
ufacturers Corp., & Stores Ala. 253 repeat 459; 45 Railway Express Real, We what So.2d said we above to Co. v. the effect that 306; 45 could well So.2d find Southeastern Ala. Greyhound from the evidence presented Callahan, Lines v. that none of Ala. 660; companies Malone, insurance were concerned Whiddon v. about the Ry. matter of So. insurable interest and Southern Co. v. Why any “im- interest. it more of an Mer Arnold, 50 So. 370, possible require burden” an Sherman, 215 Ala. chants’ Bank company to care exercise reasonable 110 So. beneficiary determine whether the has insurable interest insured before it defendants position of issues the of insurance than after the in murder results if seems insured is dead? If effort to deter- sorry course, are, of companies surance question mine of insurable interest fate, met with such the insured asserted before the issuance of the in is no liability there they may prevent it risk of the creation of the they can treat although surable inquiry purpose murder. The of such an If an completely void. policies as *15 saving made after death is to effectuate a makes causes from natural early death payment the insurance company of the can unprofitable, defendants the the of the amount of insurance carried. the for pay beneficiary the do refuse and In policies are void. that such reason the The fact precise that this ques to be of seem words, defendants the other tion not does seem to have been brought rule the insurable opinion that the previous before the courts on occasions companies. We do protect insurance tois cannot deter us from declaring that the pro designed rule is agree. The not duty upon persons which is all to exercise in violation Policies life. human tect care reasonable injure not to another re danger are interest rule insurable the quires of life companies insurance the ex they il they illegal; are are because ous ercise reasonable care not to pol issue they dangerous. are because legal icies life insurance in favor of a bene shown, long ficiary it been rec- has who has no weAs interest in the continu practically court and all by this ation of the life of ognized insured, a country an is insured in which is void as against public this courts policy be position danger opens extreme a cause it “a placed in wide door by which a on temptation of insurance is issued constant is created where to commit beneficiary of a who has profit favor life in for most his atrocious of crimes.” legal is no There Helmetag’s interest. Adm’r Miller, insurable no supra. of such a risk for creation justification We come now to the contention of the gain no social and there is an insured appellants they were entitled policy of insurance. writing of a void in presently affirmative instruction under con- court found that this has Where sideration for the plain- reason that dangerous unreasonably policies are tiff failed to meet the burden which was and of murder of the risk because insured upon present him to some tending evidence policies declared such reason has for this to show that the defendants’ acts were the- void, anomaly to be an hold it would proximate cause Shirley’s death. duty companies to use have no their say brief the defendants a situation to create care reasonable shows case, evidence that “in the instant for prove a stimulus may to be separate, independent, superseding, murder. wilful, malicious, crime murder became responsible say ‘the their brief: “The cause’ of defendants in death of Shirley Dianne theory adoption contended for Weldon.” place would behalf of perpetrate Persons who impossible are, company bur- torts an insurance rule, responsible as a policies responsible Yet in all three insurance den.” proximate consequences for statement this case there is the involved they wrongs words, commit. In other the insurance at one time another un proximate the tort proof of less require cause of company may
187 complained of, ac injury legal “ordinary sonable” there is and natural” result countability. repeatedly negligence. Our court has initial “proximate cause.” dealt defined Appellants person assert that a not lia- is quoted in Quite number of definitions are willful, ble the intervening criminal act Mutch, Railway Western of Alabama v. of another. The case of Garrett v. Louis- 316; L.R.A. Ala. So. Co., supra, ville & R.N. cited and the Moer Mobile & Ohio R. Co. v. Christian opinion in that case does contain this lan- Co., 404, 41 Brewing lein 146 Ala. So. : guage Co., R. Garrett v. Louisville & N. full of this sub- Dye-Washburn “After discussion So. Freeman, ject, noting dif- Co. v. 93 So. some Aldridge, Hotel Mr. very But of review ferences cases where the subse- there is little use merely question person many quent our the third ing cases where the act of proximate negligent, There are concludes: cause is involved. case, every almost and oft differences “ courts, ‘But at least case slight
times the turns on a difference country, refuse to hold tort-feasor general principles of facts. The of law liable for results subsequent of a *16 frequently relation thereto have been willfully which act is wrong, unless stated and not so as is their are difficult actually by act was intended him.’ application particular to the circumstances Delaware, etc., Co., Gibson v. Canal of each individual case. 213, 70, 65 26 A. Vt. 36 Am.St.Rep. 807,
802, note, 842, 843, citing the au- intervening Here we have an 54, 196 Ala. 71 thorities.” So. 686. cause, criminal act of Mrs. Dennison. the But the decision Garrett case went many dealing of this court decisions off the fact that the independ- “willful cause, proximate negligence as the person ent” act of the third was “neither agency some has intervened and has when anticipated by intended nor the defend- injury, the immediate cause the hold been not consider case, ant.” do the We Garrett party negligence in guilty of the first the supra, being authority for the proposi- as responsible, not unless at is the instance by the tion asserted defendants. original negligence the act of the time reasonably fore agency could have been put The defendants much emphasis on intervening agency If act seen. by language Mayfield used the elder in his reasonably foreseen the have been could opinion Birmingham Ry., Light & Power ifBut in not broken. chain is causal Ely, Co. v. 183 382, 816, Ala. 62 So. which independent, inter from an jury results they say They “is the law of Alabama.” reasonably cause, to he not vening, efficient are mistaken. It is not the law of Alabama. wit, person, anticipated, of a third the act agree May- court did not with Judge shown, any, if is not negligence holding field’s that Count 1 in that case injury. Clendenon proximate of the cause subject interposed demurrer 269, Ala. 171 So. Yarbrough, 233 v. the language rely which defendants Maddox, 236 & N. R. Co. v. Louisville by Judge was that Mayfield used ef- his 849, 594, A.L.R. 118 183 So. Ala. position. his fort See v. Roach Courson, 234 Ala. R. v. & N. Co. Louisville 333, 335, Wright, 70 So. cited; Mahone and cases 174 So. Anderson, where Mr. writing for Justice Co., 261 Ala. Birmingham Electric court, said: That the rule laid down is “ * * * slight courts with some and other by this It is say sufficient to by which language subject any variance count was demurrer, the inter as that expressed, grounds thought is and the sufficien- cy supported by “natural rea- of same is case, must be vening event appellant. by Bir- opportunity counsel created has afforded an cited Ely,. temptation R., mingham L. & P. Co. for its infliction. It is true So. special When grounds “b. for antici- opinion in said case condemns count by pating per- criminal action third considered, must noted but it there son. There are certain situations opinion not concurred in that the commonly af- recognized which are majority court, as a held temptations recog- fording which said count was sufficient.” humanity is like- percentage nizable n ly too, yield. So there are situations cited to a been number of cases We have temptations which create to which repre- jurisdictions by counsel from other ordinary percentage considerable litigation parties senting to this yield which, likely mankind but intervening the matter of criminal treat place persons at a created where is, course, persons. quite third It acts of peculiarly type be, likely vicious are impossible them to review all of in detail likely should be realized as to lead to ordinary opinion. of an within the limits fairly types the commission of definite cases, reading of the But our situation, If crime. which the plaintiff, many cited those negligent actor should realize that his defendants, by the show the of those cited create, might conduct is of either of
majority rule to be that stated in Re- sorts, intentionally two these crim- Law of Torts statement person inal tortious act of the third 448, as follows: Institute, American Law § superseding not a cause which re- person act of in com- “The third liability.” the actor from lieves *17 or mitting an intentional tort crime cause of harm to an- superseding following appear a authorities to hold therefrom, resulting although the or other whether intervening act is conduct created a sit- negligent a actor’s criminal nature is fact to be considered opportunity afforded an determining which such act uation whether was rea- person sonably to commit such a third But intervening to the foreseeable. crim- crime, actor may unless the at the tort or be found be inal acts foreseeable found, and, his conduct should negligent may negligence time of so actionable predicated that such realized the likelihood v. have be thereon. McLeod Grant thereby might County 128, a created 42 situation School District No. Wash. person 316, might avail P.2d 360; String third 2d 255 Whitehead v. 358; opportunity er, 501, 486, of the commit 106 himself Wash. 180 P. 5 A.L.R. Garrett, 125, a tort or crime. Hines 108 v. 131 Va. S.E. tion, the actor n yields, the actor creates act. tation harm expect that the applies when a third “Comment: “a. [*] Under thereto The rule stated in a situation person to [*] another to which the [*] rule is not third having which is utilized intentionally inflict or stated [*] person provides actor’s responsible no third this [**] reason would this Sec- conduct Section person temp- [*] for by so P.2d .140, Nichols v. W. Lillie tral & H. R. 690; Co. Co., Adams, 199 Ark. S.E.2d So.2d 1 A.L.R. 225; v. 92 L.Ed. 100 Ga. 201; Southwestern Bell v. 313; Phelps, 698, 705; Thompson, Williams v. 734; Levin City Jesse 568, Co., 73; 47 Mallory v. 28 S.E. Brauer v. New 91 Tex.Civ.App. Henderson v. Phoenix, French Piano & 254, Eleto N.J.L. 332 Grier, v. U.S. 251, 40 133 S.W.2d Telephone Realty 68 Ariz. O’Neil, 190, 196 459, 385, Ga. 103 A. L.R.A. Dade Coal York Cen Corp., 68 S.Ct Fla., 124, 327, 26 Organ 105 Co. 867; 166, 202 95; 157 69 S. v. 180, 105; Misc. 283 merely Seith v. Com because inflicted N.Y.S. harm thus ,the Co., 252, negligence has (cid:127) Electric his monwealth 241 Ill. 89 N. situation
189
severally
each
jointly
and the act of
978;
sued
or
Livingston v.
425,
L.R.A.,N.S.,
24
E.
proximate
F.Supp. may
as
cause
be counted on
Co., D.C. 106
Air Line R.
Seaboard
Air Line
injury. Hall v. Seaboard
Ry., 151 Or.
of the
Trunk
886;
Oregon
v.
Aune
Co.,
890;
602,
v.
R.
211
100 So.
Watt
Furni
Ala.
663; Strong v. Granite
622, 51 P.2d
189,
Combs,
31,
A.L.
303,
145
292,
78 A.L.R.
12 So.2d
294
Co.,
P.
Utah
ture
77
Co.,
47;
667;
Cir.,
Birmingham
F.
R.
Caudle
Electric
Schroeder,
291
v.
465;
8
Davis v.
34,
417; Campbell
22
v.
Ala.
City, M. & G.
247
So.2d
V.
Washington
v.
Scheffer
618,
Jackson,
Ala.
60 So.2d
properly determination. refusing charge not err in the affirmative requested hypothesis defend- observed, As we have heretofore each of *18 ants. complaint the counts in the contains an to wrongful averment the effect that or of Error 54 Assignment ap- No. of each negligent acts the three of insurance com- pellant to the effect that the trial is court panies proximately concurred or united in overruling objections erred in defense to contributing causing to or the death of in evidence a little dress introduction of plaintiff’s say minor child. Defendants Shirley which time or sun suit wore at the proof there was a regard failure of in that given she drank drinks her Mrs. and hence assert that the trial court erred agree. Dennison. We cannot A material in refusing give the affirmative instruc- allegation plain- each of of of counts presently tion under consideration. The complaint was that tiff’s Mrs. Dennison proof appellants say which is absent and Shirley. murdered That was one is- of the they which contend is essential was that proof sues in the case and burden of going any show “that defendant com- was on the to show that Den- Mrs. pany knew what other defendant com- girl. autopsy nison murdered the little The panies doing were in this connection.” poison- showed that died of arsenic
ing and there was evidence of the State proof Such was not Toxicologist going essential show that the dress complaint. under this It has been settled in sun suit which was or admitted in evidence long this state for a time that if damage become contaminated from her re- concurrent, wrongful has from and contained gurgitation resulted acts a considerable they may quantity of two or more tort-feasors of arsenic poisoning. be 190 suit aof rule in defense arti pertinent rule is pp. (R. policy. against tend it on an to or objects relate which or cles in court a trial ruling form No 510-574.) of explain the issues elucidate error. assigned as that connection is are admissible part the transaction of n evidence duly and shown identified when No. Error Assignment of We hold that as substantially condition same reversal. present 59 for does not cause pre occurrence. The of the the time at describing identifying and proof liminary 62 of No. Assignment of Error rule complied with the suit or sun the dress appellant “The erred each reads: Court in evidence admitted that article day Au of on the 20th entering order State, Ala. v. 259 error.
without
1954,
mo
overruling
gust,
this defendant’s
cited;
552,
North
424,
cases
66 So.2d
assign
general
a
trial.” A
tion for
new
Mansell,
Ala.
Ry.
138
Co. v.
Alabama
ern
appeal
on. the
grounded
ment of error on
252 Ala.
Hipp,
548,
459;
v.
Burdett
36 So.
grant a motion
refusal of the trial court to
37,
re
for
new trial is sufficient to invite a
ruling
any
ground
view of that
well
Assignment
Error No. 59
of
properly argued
stated in the motion and
n each
appellant
“The Court erred
reads:
by appellant.
Jackson, 263 Ala.
Grimes v.
motion for
overruling
defendant’s
22, 82
So.2d
improper statements
based
mistrial
grounds of
for new
the motions
pres
plaintiff made in the
for the
counsel
appellants
argue
trial which
This
721-729.)
jury.”
(R.
ence
Assignment of Error No. 62 are those which
assign
in several cases
held
has
court
point
take the
that the verdict
grossly
ex-
lan
general
error couched
ments
cessive.
Hall v.
be considered.
will
guage
397,
Pearce,
Ala.
96 So.
Jackson
348,
Butler,
Co.
Lumber
Section
Title Code
Ed
Commission of
Almon v.
under which this
the statute
action was
So.2d
County,
Cullman
brought, provides
wrongful
ucation
Assign
there cited.
cases
persons
death of minor child the
So.2d
there
spell
No. 59
out
sue,
Error
does
verdict,
ment
entitled
entitled
defendants
which
improper statements
damages
“shall recover such
as the
pages 721-
examination of
complain and an
may
damages
entirely
assess.” The
are
record,
pages are referred
imposed
preservation
punitive,
for the
error,
all
shows
assignment
human life.
&
Louisville
N. R.
Co.
place
took
pages
recorded on those
Bogue, 177 Ala.
191 Bailey, supra; v. In Louisville & R. Co. of its contention N. 167; Shirley 178, v. refusing give 245 the trial Ala. 16 So.2d court erred in 100, above-quoted instruction, Shirley, Liber 261 Ala. 73 So.2d affirmative
ty National asserts that it issued covering Mrs. Dennison life in rendered this The verdict is an which re industrial large, perhaps largest case is to come quires part insurable interest on the brought before in a under this court case insured, beneficiary in life of the 123, statute, 119 so-called homicide §§ hence, issuance of the could 7, re Title 1940. But trial court Code wrongful negligent constituted verdict fused to disturb the amount of the by appellee, as act claimed case and we have held that when such is the below. ver we will not order a reduction unless the passion, dict is so as indicate excessive Highsmith State ex rel. v. Brown prejudice, corruption mistake. Mont Co., 249, 252, 182 Service Funeral 236 Ala. Lines, Inc., Davis, gomery City 261 Ala. v. 18, 20, “True, So. court observed: 491, 923; 74 & N. R. Co. So.2d Louisville industrial insurance is a form of life insur- 288; 570, Tucker, v. 262 Ala. ance, but it is distinctive in character and Wilson, National Biscuit Co. 256 v. is classed the Code with mutual aid and 241, Reeves, 492; City v. So.2d of Mobile insurance, benefit it though features has 488, are unwill So.2d 688. We them distinctive from as well as from ordi- damages ing say the amount nary line and other old insurance.” But punishment way awarded of these pointed were not distinctions out appellants wrongfully negli three that case and far are in so as we advised insurance, gently issuing illegal policies of legislature this court nor the neither has clearly the issuance which the evidence insurance, undertaken to define industrial plaintiff’s young shows led murder of 1, 10, Chapter although Art. of Title daughter, indicate so excessive as to Aid, with “Mutual Code deals Benefit mistake, passion, prejudice, corruption or Companies or Industrial or Associations.” shown, we and as have heretofore The courts of other states some have said verdict fixing the amount of the general sense, in a “industr’M insur charged duty giving con with the policies ance” means issued in small preventing necessity sideration pay weekly amounts consideration of similarly minded. wrongs same others ments, ordinary distinguished in from err did not We hold that the trial court surance, usually large which is amounts of the motion overruling grounds those annual, and maintained semi-annual or argued for new trial which here as are premiums. guarterly Russell Prudential having been well taken. America, Ins. Co. of 176 N.Y. N.E. 252; Casualty Life & Ins. King, Co. v. We come now a consideration of 585; Tenn. 195 S.W. Prudential Ins. assignments argued in the those of error Howell, Co. of America v. 144 Okl. appellants apply which do not brief of 289 P. Prudential Ins. Co. of America all them. Hill, Krump Okl. 49 P.2d *20 Co., horn v. Hancock Mut. Life Ins. Liberty Assignment National’s Error of John 719, Ky. 272 114 Surety S.W.2d Old 66 P based the refusal trial No. is of the Alva, Morrow, Life Ins. Co. of Okl. v. 195 requested charge its written give court 422, Okl. 158 P.2d Gontrum v. Union L36, charge you reads: “I which Liberty Co., 624, Ins. Life 177 Md. 11 A.2d you the evidence this case you believe 625, 627. plaintiff against find for the the cannot defendant, Liberty National Life Insurance The case last cited is one of the two Company.” by Liberty cases cited in support National
192 part that case insurable of bene- In interest on the the of error. assignment of thusly: ficiary in the life of the insured. is described industrial insurance written for “It is a form of insurance every policy pro- It is not small which death, in payable at small amount limited premium payments vides for collected to be at premium collected of a consideration short, at intervals that some courts fixed intervals, short, is not unlike and fixed excepted general rule that from the benefits, insurance, since death burial or requires beneficiary the have an in- to the insured ordinarily accrue its benefits surable interest in the life of the insured. v. Fulcher In rather than to another.” exception applies poli- That only when the the S.E. Parker, Va. 194 169 cy whereby facilitating has a the clause Liberty National other case cited pay company is due allowed to the amount presently under matter connection with the beneficiary policy under the to the to the part consideration, as follows: it was said appear may company one to be who to the designed to meet is “Industrial equitably entitled case thereto’. usually in in- need of those the immediate Parker, supra, of Fulcher v. relied expenses circumstances, digent and to cover by Liberty National, policies two of the burial, illness, etc.” of one’s last beneficiary involved did not name presenty facilitating the other contained of policy under clause Liberty National’s Monthly “Special excep- the kind outlined is labeled above. That the consideration and is tion cover is so limited demonstrated Insurance” on is Endowment part opinion Appeals Insurance” on “Endowment of the described Court comparatively in a it is page, Adm’r, but Kentucky the front in Newton Hicks’ premiums amount, $500, and were small Ky. 138 hereafter S.W.2d monthly. payable quoted: “ * ** matured However, policy would have Where industrial anniversary following facilitating allowing insured’s contains a clause on the birthday, company pay amount and at such time the due seventeenth insured, payable beneficiary, un- to the under were proceeds may appear made had been who payment one prior less to, [Metropolitan This manner of the Nelson case the insured. Life death of equitably company the creation entitled there- certainly payment was not options Nelson, Ky. Several Ins. burial fund. Co. a funeral and proceeds going any L.R.A.1916F, provided for draws S.W. 457] were ordinary death life beneficiary by reason distinction between Option cash, excepts Option insurance, 1 is No. industrial insured. per rule that payments general $10 latter No. 2 is from the installment wholly opinion week, one our without an objective general may not collect with the life of inconsistent another cases policy; as stated insurance” and such distinction “industrial Krump dis- of these In view above. followed in the recent case referred to say that unwilling to horn v. Hancock Mut. Life Ins. tinctions we are John Co., Ky. 719, “in- S.W.2d one Liberty National’s de Krumphorn cases and Nelson dustrial insurance.” pol fine industrial small insurance as in our con- if we be error But even pur weekly premiums, icies policy here under con- clusion pose augment of which in is not in- “industrial not one of sideration sured’s estate or to care for his opinion clearly surance,” we are dependents, provide insured’s *21 policy which kind of the courts is not last it -illness and a burial. decent While n require to having states held no the Nelson of case allows one some no
]|<)3
¡another
sup-
of the Beqeficiary.”
of
interest
the-life
insurable
(Emphasis
policy
.
plied.)
to recover on an industrial
clause,
it
facilitating
yet
containing a
above,
quoted
the
provisions
Under the
abrogation
says,
expressly
is
there
beneficiary
change the
insured cotíld not
zvithout
that one
general rule
the
of
company
within
and
notice to the
written
the
insurable
an
n
of
life
in-
only upon
then
of insurable
“evidence
pol-
insurance
carry
cannot
another
Company.”
satisfactory
That
terest
to the
exception
the
icy
person,
on
and
such
part
quoted
which we have
of the
clause
applies
industrial
only to
Company
provide that “the
italicized does
where
facilitating clause
containing a
by
may
payment
any
to
relative
make
n
beyond
policy is not
of
‘the size
the
ap-
any person
marriage,
blood or
or to
accomplish
reasonably
to
sum
certain
Company
equitably
pearing to the
to be
provide for
purpose
(to
intended
of
payment
hav-
entitled
because
burial),
faith
good
last illness and
maintenance,
ing
expense
incurred
for .the
by
parties concerned.’
shown
all
is
Insured,”
medical
or
of the
attention
burial
*(cid:127)
*”
*
supplied.)
(Emphasis
right
but that
“the
exists
the event
S.W.2d
Beneficiary fail to file
with the
a claim
Company
sixty days
within
after
death
policy issued
in the
a clause
There is
of
right
the Insured.” The
of the benefi-
and involved
Liberty
National
ciary
sixty-day
within
period
follow-
as follows:
reads
case
instant
ing the death of the
pay-
insured to demand
proceeds
of
ment
refutes
notice to
“Beneficiary. By written
—
Liberty
contention
National
may from
Insured
Company the
clause here under
has the
consideration
beneficiary,
newa
name
time to time
facility
same effect as the
payment
true
in-
subject
evidence
clauses contained in
policies
some of the
Company, but
satisfactory to
terest
Virginia
involved in the
Kentucky
until
be effective
change shall
no such
to which we have
cases
alluded.
the Com-
endorsed
pany.
yet
is
There
another
reason why we
agree
cannot
with the assertion of Liberty
beneficiary
before
die
“If
National
to the
effect that
its
re-
Insured shall
of the
the Estate
Insured
quired no insurable
Regardless
interest.
automatically
the Benefi-
become
then
type
of insurance
may
or what
it
beneficiary
ciary
If the
thereof.
fail
called, Liberty
purported
National
to issue
zvith,
Company with-
claim
file
a contract of insurance
Title
§
death
sixty days
after
1940, provides:
Code
“A contract of in-
Insured,
Company may make
then the
surance is an agreement, express or im-
payment
any
relative
blood
plied, by which
party,
one
for a considera-
appearing
marriage,
any person
or to
tion, promises
pay money,
equiva-
or its
entitled
Company
equitably
to be
lent, or
do
some act of value to the
in-
payment
having
to such
because of
assured, upon the
injury
destruction or
expense
maintenance,
curred
something
in which the
party
other
has
medical
burial
the In-
attention or
an insurable interest.” We
legis-
find no
minor,
Beneficiary
sured.
If the
is a
judicial
lative enactment or
decision limit-
qualified
legally
or is otherwise not
ing
language
provisions
just
pay-
give a valid
at
release
the time
quoted.
Section
Title
Code
may
Company
ment hereof the
make
opinion
in our
does not have that effect.
payment
any person
who furnishes
satisfactory
Company
evidence
to the
hpld
view
foregoing,
tha,t
we
for,
person
responsible
that such
there is no merit in Liberty
As-
National’s
contributing
actually
signment of Error No. 66 P.
*22
Assignment of
National Life’s
Error No.
Error
Assignment
Life’s
Southern
questions
A
of the trial
the action
court
the trial
challenges
action
the
K
No.
requested
give
requested
refusing
in
to
its written
give
refusing to
its
in
court
N,
charge 1
which
Court
S19,
“The
reads:
“The
reads:
charge
which
written
you
you
if
that,
you
charges
that
believe the
if
believe
evi-
charges
court
the
you
case, you
dence
case
cannot find
the
cannot find a
in
in this
the evidence
against
and
the defendant
the
against
plaintiff and
of the
verdict in favor
National
and
Insurance
Life
Accident
Insurance
& Health
Life
Southern
the
complaint Company.”
the
Count
Company under
as amended.”
by Nation
argument made
its contention
support of
that
al Life in
issue
its
did
Southern Life
refusing
give
court erred in
the trial
medical
policy
received a
had
until after it
above-quoted affirmative instruction is
physician
signed
a licensed
certificate
there is an entire ab
the effect that
was to the
This certificate
of this state.
going
show that
of evidence
sence
whose name was
doctor
effect
that
policy could have
Life
been
National
Shirley and
had
signed thereto
examined
for Mrs. Dennison to
inducement
mur
parents
be in
her
her
found
and
had
had
inasmuch as she
der
knowl
health;
living
that
conditions
good
policy
fact
edge of the
that
had been
parents
of the
character
and moral
issued.
as would effect
guardian were
such
application for the National
Life
risk;
examination was con
by Mrs. Dennison bears
policy signed
date
home;
and,
in the child’s
ducted
April
evidence shows
qualification.”
the risk without
“advised
he
actually signed
days
it several
that she
completely
is
false. The
certificate
This
prior
day
It
on that
thereto.
examined the child
had not
nor
doctor
paid
prem-
the first
Mrs. Dennison
month’s
in her home. He was
visted
had he ever
accompany
appli-
ium which had
surroundings.
her
with
How
unfamiliar
cation,
apparently it was that date
so
which
ever,
apparently
in
had confidence Mrs.
he
agent of National Life
inserted
request signed
at her
and
a
application. At
the time Mrs. Dennison
certificate which Mrs. Den
medical
blank
paid
premium,
first month’s
which
is
completed
which
apparently
later and
nison
“deposit,”
referred
as
also
she was
Life.
then sent to Southern
she
given
receipt signed
National Life’s
and
But
fraud Mrs. Dennison
agent
pertinent
duly authorized
or fraud of the doctor is in
negligence
part reads:
utterly
opinion
immaterial
our
de-
“* * *
deposit will
re-
Such
charge that
Life
Southern
fense
application
(a)
turned
is declined
wrongfully
in that
it
issued the
(b)
if a
is issued other than as
duty
it
discharge the
failed to
applied
Applicant
for and
declines to
steps to determine
take
reasonable
accept
is
it. No insurance
force
had an insurable interest
Mrs. Dennison
application
on such
unless
until
is
nothing
There
in the insured.
has been issued
thereon
remotely
which even
bears on
certificate
with
delivered
accordance
the terms
question of
insurable interest
application except
of such
that when
parants
nor her
child
neither
deposit
equal
such
to the full first
the execution of that
anything
do
premium
policy applied
on the
for and
false certificate.
application
approved
at
there is no merit
in the ar-
Company
holdWe
Home
Office
for the
Life
Class,
made
Southern
gument
Plan and Amount of insurance
Assignment of
No.
Error
66 EL
of its
and at the rate of
ap-
Premiums as so
*23
affecting
against
the
for, then,
a claim
plied
policy,
without
under the
if
1,
died
May
anniversaries
had
a natural
1952,
Date
death on
Insurance
on
policy,
ground
the
the
agent
thereof as
forth
National’s
had neith-
set
in force
er delivered
applied
policy
will be
the
to Mrs. Dennison nor
receipt,
notified
but no
her that
the
it had
prior
from
date of
been issued
to
Company
the
obligation
by
child’s death.
is assumed
the
application
so
unless
until such
Under the
complaint,
averments of this
approved.
plaintiff was not
against
entitled to recover
[******]
“* *
*
If
the
application for
the
National Life
policy
had been “in force” if Mrs: Dennison
simply
proof
the
post-
applied for
declined
policy
had
an
had
Shirley’s
insurable interest
Company,
amount de-
the
by
poned
the
life. National Life was entitled to an
Applicant
be returned
posited must
affirmative instruction in its favor unless
receipt for it below.”
will
who
evidence is sufficient
reasonable
inference
Dennison
Mrs.
accepted by Nation-
application was
The
knew
policy
issued,
that the
had been
inas-
April 23,
about
1952.
on or
Life
al
complaint
much as
charges
April
bears date of
policy
thereon
issued
policy
issuance of
National
Life
acted
Na-
policy
mailed to
25,
was
as an inducement
to Mrs. Dennison to
Alabama,
Wetumpka,
agent
Life’s
tional
Shirley.
murder
29,
had
April
agent
1952. The
on or about
policy Mrs. Dennison
not delivered the
There is no direct
going
evidence
Shirley’s
He had the
death.
the time
show that
at
Mrs. Dennison had knowledge
that time. Accord-
policy
pocket at
in his
the fact that
the National
policy
Life
testimony, he had not
agent’s
ing
had been issued
at the time she killed the
Dennison of the fact that her
child.
notified Mrs.
But the rule is well established that
accepted
or that
application
reviewing
had been
the action of the trial court in
him.
refusing
issued and mailed to
policy had been
the affirmative
request
instruction
testimony
effect that he
defendant,
was to the
ed
His
we review the tendencies
whatso-
any conversations
had not had
light
evidence
most favorable
subsequent
Dennison
ever with Mrs.
and we must allow such reason
paid
“deposit,”
able
date on which she
inferences as
was free
draw,
April
inferences
may
which we
think
7,
probable.
more
Carraway Methodist
interest,
lack
Aside from the
Hospital
Pitts,
v.
96;
Ala.
57 So.2d
under
set
it
clear that
the evidence
seems
Tyler
Drennen,
255 Ala.
51 So.2d
“in
the National Life
was
out above
516; Smith
Lawson,
264 Ala.
88 So.
death,
Shirley’s
inas-
at
time
force”
2d 322. If
proven
from the
facts and cir
accompanied
Dennison
much as Mrs.
had
cumstances a
may
reasonable inference
“deposit”
application
her
drawn to
culpabili
substantiate the claimed
premium
“equal
the full first
on the
ty of
Life,
National
then its affirmative in
application
applied
for”
had
struction
properly
refused. Birming
approved
home
office of that
been
ham Electric
McQueen,
Co. v.
253 Ala.
days prior
company several
to the child’s
44 So.2d
Sullivan v. Alabama Power
“receipt”
terms of
Under the
death.
Co.,
Aircraft
were sufficient
cause
those circumstances
Sales &
Gantt,
Service
Co. v.
policy to be “in force” at
the time
respectfully dissent. may
Knowledge established face of evidence even
circumstantial Kuchlik ignorance. professions App.Div. 267 N.Y.S.
Feuer, 239 555; Wol 542, 191 N.E. N.Y. affirmed R., 254 York New Central
oszynowski v. 172 N.E.
N.Y.
Affirmed.
NASHVILLE
LOUISVILLE &
RAILROAD
COMPANY.
SIMPSON,
LIVINGSTON,
J., and
C.
Rehearing March Denied COLEMAN, (dissenting). Justice majority opinion agree I Life holding National
except the charge. affirmative énfitléd'to
riot