80 So. 75 | Ala. | 1918
The judgment in this case purports to have been entered on October 4, 1917. From the indorsement of the trial judge thereon, it appears that the bill of exceptions was presented on December 17, 1917. Appellee's brief in support of the motion to strike the bill of exceptions contains a statement to the effect that the bill was signed by the presiding judge on the day of its presentation, and that afterwards, on February 9, 1918, corrections were made by the judge. The original bill of exceptions, which has been certified up and submitted in evidence upon this motion, does not bear out the statement of the brief. It shows presentation on December 17th as stated above, and that the presiding judge did on February 9, 1918, after making corrections on that day, approve and sign the bill. While the bill was corrected in some particulars, no new ground of alleged error, no new exception, was incorporated therein, so that the motion to strike falls squarely within the rule laid down in Tapia v. Williams,
The bill of exceptions purports to contain all the evidence offered or heard upon the trial of the cause. This report of the evidence shows that defendant's pleas and rejoinder, upon which the case went to the jury, were proved without conflict. In this state of the case, defendant was entitled to the general affirmative charge which was duly requested. This charge appears in the bill of exceptions only, but it must be considered nevertheless. Mobile Light Railroad Co. v. Thomas,
Numerous assignments of error, based upon rulings on the pleadings, are argued in the briefs. There is no necessity for a review of each ruling. It will suffice to state our opinion on the question, which, on the present record, must control the result of the case.
The suit is upon a policy of life insurance. The policy, dated July 8, 1915, contains the following stipulation:
"This insurance is granted in consideration of the sum of sixty-nine and 93/100 dollars, paid in advance, for one year's term insurance, and may be continued in force thereafter in further consideration of the payment of a like amount on or before the 8th day of July, in every year, during the continuance of this contract, until the death of the insured; and in further consideration of all the conditions, benefits and privileges, stated on the second and third pages hereof."
One provision of the policy, to which, among others of no consequence in this connection, we infer the stipulation last quoted has reference, is that —
"A grace of one month (not less than thirty days) during which this contract shall remain in full force, will be allowed in the payment of all premiums except the first."
The premium due July 8, 1916, was not paid; but on August 4th, next thereafter, insured executed his promissory note for the amount of it, due and payable October 10, 1916, with interest at the rate of 5 per cent. per annum. This note was not paid at maturity, and upon October 11, 1916, insured died. Defendant's receipt, under a heading which showed that it was the premium due July 8, 1916, on the policy held by insured, was expressed as follows:
"Received as stated under the 'Detail of Settlement' on this receipt, the premium above described, subject to the terms, conditions and provisions of the policy named and the conditions printed on the back of this receipt."
On the back of said receipt the following:
"If a check or draft is given in payment of the premium, this receipt shall be void and of *238 no effect if said check or draft is not paid upon presentation. Notes will not be accepted in payment of premiums unless written upon the company's form and if any note given in payment or part payment of the premium is not paid when due this receipt shall thereupon become null and void and the insurance shall immediately terminate (except as to any contractural right to surrender value) without any further action on the part of the company, in accordance with the terms and conditions of the policy."
This receipt was given to insured and remained in his possession until his death. If the trial court, in giving the general charge for plaintiff and in refusing the general charge requested by defendant, was actuated by the opinion that insured had a grace of 30 days after default in the payment of the note under that provision of the policy which allowed such grace "in the payment of all premiums except the first," our judgment is that the court was in error on that point as well as for the reason, already stated, that the pleas and rejoinder under which appellant was permitted to defend, however illy or well they may have raised the question, were proved without contradiction in the evidence or inference to be drawn therefrom. Under the evidence in this case, the stipulation indorsed upon the receipt expressed the conditions upon which the note was received, and was binding upon the insured. Iowa Life Insurance Co. v. Lewis,
The judgment is reversed; the cause remanded.
Reversed and remanded.
MAYFIELD, GARDNER, and THOMAS, JJ., concur.
