35 So. 2d 696 | Ala. | 1948
This is a suit brought by Marvin S. Hanback against The Life Insurance Company of Virginia on a certificate issued under a group accident and sickness policy. The complaint consisted of one count, which will appear in the report of the case. It was amended by striking the words "December 1" and inserting in lieu thereof the words "November 17". It is insisted that the amended complaint, which substantially follows the statute (form 12, Title 7, § 223, Code of 1940), is subject to demurrer for failure to allege that the policy was in force and effect during the period for which disability payments are claimed. The complaint was not subject to demurrer in this regard. Inter-Ocean Casualty Co. v. Anderson,
It is further claimed that the complaint does not clearly show whether recovery is sought for loss under the certificate or under the group policy. This position is not correct. The group or master policy is issued to the employer and the certificate is issued to the employee. But the two contracts are not separate and distinct without relationship to each other. On the contrary while the suit is upon the certificate, "The policy contract is to be found upon examination of the provisions of the certificate in connection with those of the 'Master Policy'." All States Life Ins. Co. v. Steward,
The demurrers of plaintiff to pleas 2 through 9 inclusive were sustained by the court. Evidence of the matters alleged in the pleas was introduced under the general issue. Whatever error, if any, there may have been in these rulings, was error without injury. Coolidge v. Collum,
The court sustained objection to the following question propounded to Dr. Harry M. Simpson. "In your professional opinion, from your examination of Mr. Hanback, was he totally disabled to perform every duty of his profession when you examined him?" We do not think the court should be put in error for this ruling. Without considering whether the question invades the province of the jury, there is no proof that the doctor knew or had been informed of the duties of plaintiff's profession. In fact Dr. Simpson expressly testified, "I didn't inquire into his industrial history." Birmingham Amusement Co. v. Norris,
Raymond Stults, witness for plaintiff who was not qualified as an expert was asked on direct examination, "I will ask you if after November 17, 1945, if he appeared to be ill?" The defendant objected on the ground that the witness was not an expert. The court overruled the objection and permitted the witness to give an affirmative answer. In this ruling there was no error. American Nat. Ins. Co. v. Rains,
The court refused to give written charges 1, 2, 4, 5, 6, 8 and 9 requested by the defendant. There was no error in these rulings. The charges are either covered by other written charges or the oral charge or are contrary to tendencies of the evidence or follow the wording of certain parts of the policy and not the meaning or construction which should be given to such parts of the policy. Pacific Mutual Life Ins. Co. of California v. Marks,
Affirmed.
GARDNER, C. J., and FOSTER and LAWSON, JJ., concur.