Manhattan Life Insurance v. Verneuille, 47 So. 72

Manhattan Life Insurance v. Verneuille

47 So. 72 | Ala. | 1908

ANDERSON, J.

Section 2602 of the Code of 1896, in attempting to regulate insurance, says: “No life, nor any other insurance company, nor any agent thereof, shall make any contract of insurance, nor agreement as to a policy contract, other than is plainly expressed in the policy issued thereon,” etc. The language quoted is clear and unambiguous. It means what it says and says what it means. To hold that the insured is bound by any anterior or contemporaneous agreements, not plainly expressed in the policy, would strike down both the spirit and letter of the statute. Certainly the par*597ties could, in tbe absence of tbe statute, make tbe application a part of the contract by proper reference thereto^ and without setting out said agreement in tbe policy; but to bold that they can do so in the very face of this statute would be to emasculate it. It was intended to prevent tbe very conditions ■ set up in tbe defendant’s special pleas, and to relieve tbe insured from any statements or agreements not plainly expressed in tbe policy. Tbe trial court did not err in sustaining tbe demurrers to tbe defendant’s pleas numbered from 3 to 10, inclusive.

Tbe trial court will not be put in error for sustaining tbe demurrer to plea 2, as tbe defendant got tbe benefit of same under plea. 1. Tbe complaint sets up a contract of insurance between tbe insured and tbe defendant. Plea 1 denies tbe allegations of tbe complaint, and plea 2, in effect, does tbe same thing. Nor do ive think tbe second plea is a plea of non est factum. — Code 1896, § 3353, form 33; L. & N. R. R. Co. v. Trammell, 93 Ala. 350, 9 South. 870.

Begardless of tbe rule of practice adopted by tbe trial court for amending pleas, tbe declination to allow tbe defendant to file tbe additional pleas, 11 to 16, inclusive, was not reversible error. Each of them predicated the defense upon matter contained in tbe application, but which was not claimed to be in tbe policy, and was demurrable. It is not error to refuse an amendment to which a demurrer would, be sustained. — Beavers v. Hardie Co., 59 Ala. 570; Nash v. Southern R. Co., 136 Ala. 182, 33 South. 932, 96 Am. St. Rep. 19.

Tbe complaint was in code form; and, in tbe absence of a plea denying the execution of tbe policy, tbe plaintiff made out a prima facie case by introducing tbe policy and proving tbe death of tbe assured and that defendant bad notice thereof. There was proof of death, *598and tbe evidence further afforded an inference that defendant had notice of same. The failure to formally furnish proof of death, etc., as required by the policy, was not available to the defendant under the general issue, but should have been specially pleaded. — 25 Cyc. 924, 925.

Under the issues presented by the pleading, upon which the case was tried, the trial court committed no reversible error in ruling upon the evidence.

The judgment of the law and equity court is affirmed.

Affirmed.

Tyson/C. J., and Simpson and Denson, JJ., concur.