52 So. 45 | Ala. | 1910
It seems entirely clear to us that there was not tenable objection to the first count of the complaint. It followed the form laid down in the Code as for an action on a policy of life insurance, and stated a cause of action.—Insurance Company v. Bledsoe, 52 Ala. 538. If the evidence developed a case arising on a policy of accident insurance, that raised a question, we hardly need to say, to be reached otherwise than by demurrer. Nor does counsel for appellant contend for anything different. The contention in the brief is that there was error in that action of the court by which it allowed the policy to be put in evidence, notwithstanding defendant’s objection because it tended to establish a case at variance with that stated in count 1. The effort to state in the Code form an action on a policy of accident insurance proceeded, as we think, upon a misapprehension of the proper office of that form. A policy which insures against death resulting directly and independently of all other causes from bodily in
Plea 12 set up a clause of the policy in AAihich it Avas stipulated that in the event of fatal injury from exposure to obAfious risk of injury or knoAvn danger the defendant company should not be liable, and alleges that the death of the insured “did result- from external, violent, or accidental means, and was the proximate result of the exposure by the said Mrs. Julia Reese (the insured) of herself to the obvious risk of danger, in this: That she attempted to and did step or jump or alight from a moAdng car, and that her said death resulted próximately therefrom.” In argument stress is laid upon the fact that the exposure to danger provided for in
But let it be assumed that the exception here relieved defendant of liability on “exposure to obvious danger,” and that “exposure to obvious danger” means something less than voluntary exposure to obvious danger. How •does the case stand? In Tuttle v. Travelers’ Ins. Co., 134 Mass. 175, 45 Am. Rep. 316, the language of the ■exception was “exposure to obvious or unnecessary danger.” The court applied the general principles of the law of negligence. So in Smith v. Preferred Mut. Acc. Ass’n, 104 Mich. 634, 62 N. W. 990; Travelers’ Ins. Co. v. Jones, 80 Ga. 541, 7 S. E. 83, 12 Am. St. Rep. 270, and Smith v. Aetna Ins. Co., 115 Iowa, 217, 88 N. W. 368, 56 L. R. A. 271, 91 Am. St. Rep. 153. In Shevlin v. American Mut. Acc. Ass’n, 94 Wis. 180, 68 N. W. 866, 36 L. R. A. 52, the exception was: “Any injury resulting in whole or in part from exposure to unnecessary •danger.” The court said: “It plainly includes all'cases of exposure to unnecessary danger, in which such exposure is attributable to negligence on the part of the •assured; that is, the exception was intended to hold the insured responsible for the exercise of ordinary ■care, and to except from the provisions of the policy •all cases of injury occurring in whole or in part through a failure to exercise such care. Under such a provision no recovery can be had if the injury is caused by reason of exposure to unnecessary danger, within the general principles of the law of negligence. The meaning, then, of the plea, is that there is obvious risk or danger in stepping, or jumping, or alighting from a moving car, without reference to the speed at which
Of those pleas which seek to set up a violation of a city ordinance by the insured, it seems sufficient to say that, while speciously worded, they do not aver a violation of the ordinance alleged. The ordinance prohibits persons “to catch hold of, or swing upon, the cars of said railroad company, while such car is in motion.” The plea is that the death of the insured took place-from her attempting to swing herself from a car while-in motion — a different thing.
There is one other reason, applicable to all those pleas which set forth the policy, why -demurrers to them should have been sustained: They purport to constitute a full answer to the plaintiff’s action, whereas the limitation in the policy, in the event of death or injury from the various causes indicated in the pleas, is to-
Plaintiff introduced in evidence certain receipts, one of which showed the payment of policy fee, or original premium, and two the payment of renewal fees or premiums. These receipts were objected to. The natural and easy construction of the bill of exceptions — certainly a strict construction against the exceptor — must be that these receipts had been offered and received in evidence before objection ivas made. The uniform rule of this court has been to hold that such delay as is shown here waives every objection tc the evidence, except that it is illegal, which this evidence was not. But no tenable objection could have been taken at any time. The first receipt showed that the policy had been put into effect. It ivas cumulative,‘after the policy had been introduced without objection, and unnecessary, but certainly not irrelevant, incompetent, immaterial, or illegal. The renewal receipts went to the gist of plaintiff’s action, and, while the assignments of error predicated upon the rulings admitting them are referred to in appellant’s brief, there is no argument to sustain them.
The objection to the renewml receipt signed by William George Fogg came too late, as was the case in respect to the receipts already considered. There were other reasons why the objection to it should have been overruled. The original policy insured Mrs. Julia Reese from 12 o’clock, noon, of September 3, 1907, until 12 o’clock, noon, of the 1st day of October thereafter, and for such further peroids to be stated in renewal receipts, as the payment of premiums would maintain. Paragraph N of the policy was in these words: “If the payment of any renewml premium shall be made after the expiration of this policy, or of the last renewal receipt, neither the assured nor the beneficiary will be
Further objection is that the receipt was a departure from, the original contract. No sort of doubt but that the rule is correct which recognizes that the renewal of a policy of insurance, without more, does not change the terms and conditions of the policy, but merely continues them in force. The rights of the parties are still determined by the provisions of the original policy, no matter how often it may have been renewed. Its terms are neither enlarged, restricted, nor changed.—1 Cooley’s Briefs, 849. But the rule has always prevailed, in respect to every character of contract, that after an agreement has been made, and reduced to writing, it is competent for the parties at any time, by a new contract, either altogether to waive or annul the former agreement, or in any manner to add to or subtract from, or vary or qualify, the terms of it, and thus to make a new agreement which is to be proved partly by the original agreement and partly by the subsequent terms, verbal — unless forbidden by the statute of frauds — or written, ingrafted upon what is left of it.—2 Wendell’s Blackstone, 382, note. In Commercial Fire Ins. Co. v. Morris, 105 Ala. 498, 18 South. 34, the court recognized both rules, saying: “Where, however, there exists a contract of insurance, not expired, and there is an agreement between the parties to renew the policy, and no change is suggested or agreed upon, it will be im
This seems to leave for consideration in this connection tbe objection that Fogg was not tbe agent of tbe defendant, with authority to modify the . contract as shown by tbe renewal receipt. The record does not sustain the contention. Tbe witness Reese testified that tbe company got tbe money. Fogg paid it to them, and he bad authority to issue receipts for tbe company. Tbe receipt was in tbe printed form furnished by tbe company to its agents, on which they should give receipts and take money. Appellant suggests that Fogg made a mistake. But, if so, tbe court could not act upon such suggestion, in tbe absence of proof to sustain it. Nothing is shown of what passed between tbe insured and the agent, Fogg, except tbe payment of tbe money and tbe issuance of the receipt. In tbe absence of proof, it is clear that tbe court bad no warrant for as
It only remains to dispose of the following exception: Appellee asked the witness Reese: “When were you informed by the company that Mrs. Reese, the insured, was dead? When, in your recollection, was the company first informed of the death of the insured?” One objection, the one now insisted upon, was that these questions called for hearsay evidence, and not the best evidence of the matter inquired about. The witness answered: “The same day the official letter was written to the company.” A motion was then made to exclude the answer on the same grounds. The objection and the motion proceeded both upon an assumption that the company was informed in writing and that the witness had no knowledge of the fact to which, he deposed. We cannot indulge either assumption in order to impute error to the trial court.
We have considered every assignment of error insisted upon in appellant’s brief. Finding no error, the judgment must be affirmed.
Affirmed.