Providence Saving Life Insurance Society v. Pruett, 47 So. 1019

Providence Saving Life Insurance Society v. Pruett

47 So. 1019 | Ala. | 1908

DOWDELL, J.

— This is the second appeal in this case. —Providence Savings Life Assur. Soc. v. Pruett, 141 Ala. 688, 37 South. 700. Rulings of the lower court on the pleadings were then considered, wherein it was adjudged that certain pleas were subject to the demurrers interposed. Upon the trial, after affirmance of the judgment on the pleadings on the former appeal, the defendant withdrew all pleas theretofore filed, and then by leave of the court filed pleas numbered from 1 to 64, inclusive, which were demurred to by the plaintiff, except plea No. 1, being the general issue.

Pleas Nos. 4, 7, and 9 are the same as pleas 5, 8, and 10 held had on former appeal, except the words “among other things” are omitted. Demurrers were sustained. *545to these pleas; the grounds being the same as interposed to pleas 5, 8, and 10 on former appeal, with the additional grounds that they failed to show the insurance contract was violated in spirit, intent, or substance by the alleged false statements, and that the legal effect of an instrument can only be pleaded by setting out the instrument in substance. The pleader therefore amended these pleas by alleging that by said contract, taken as a whole, the assured, Seth G. Pruett, warranted as true the statements alleged to be false. Demurrers upon the grounds stated above were sustained to the pleas as amended, and the pleas were again amended by setting out the contract, the conditions of which were alleged to have been breached in its entirely. As thus amended, demurrers were overruled. The history of these pleas applies to pleas 2, to 13, inclusive. Pleas 14 to 35, inclusive, state the warranty in another form, and the history of their amendment and reamendment is as above stated. Demurrers were overruled to these pleas as last amended. Pleas 36 to 44 state the warranty in still another form, and they were amended and reamended as above stated, and, as last amended, the demurrers to these pleas were overruled. Pleas 45 to 51 set up misrepresentations of matters alleged to be material to the risk. After amendment by setting out the contract, demurrers to these pleas were overruled. Pleas 57 to 64 set up misrepresentations as to crtain matters, and allege that they were agreed by the assured and the insurer to be material to the risk. Demurrers were interposed to these pleas, and, after amendment by setting out the entire contract between the parties, the demurrers were overruled.

At this stage of the pleadings and the ruling thereon the judgment entry recites: “ And the plaintiff replies generally to all pleas of the defendant, and files special replication A and the defendant’s demurrer to special *546replication A being argued by counsel and understood by tbe court, it is considered and ordered by tbe court, and it is the judgment of the court, that the said demurrer to special replication A be and the same is hereby sustained; and the plaintiff withdraws his demurrers to pleas 52, 53, 54, and 55, and the defendant withdraws its amendment to pleas 52, 53, 54, and 55, and the court withdraws its rulings on the demurrers to pleas 52, 53, 54, ánd 55, and the plaintiff joins issue on pleas 52, 53, 54 and 55 as originally filed. And issue being now joined between the parties thereupon came a jury of good and lawful men,” etc. It is to be observed that the effect of the rulings of the court on the demurrers to the special pleas required the defendant to set out the contract of insurance in full, instead of the substance merely, as it had attempted to do in said pleas. The defendant, in conforming to the rulings of the court-in this respect, secured a favorable ruling, and in setting out the contract in full secured every benefit to itself sought, to be obtained by merely setting out the substance of the contract. In this it is manifest, if any error was committed, it was error without injury.

The judgment entry informs us that the case was tried on issue joined on pleas 52, 53, 54, and 55. The recital is such as to preclude inference of any other issue in the case . Such being so, we cannot look elsewhere for the purpose of ascertaining and determining that there were other issues. It is a matter in which the recital in the judgment controls. If the judgment were silent as to the issues, or so vague, indefinite, and uncertain in its recitals as not to inform, then it is permissible to look elsewhere to determine what were the issues. But such is not the case here. The issues were expressly and definitely stated, and this express statement of what the issues were, under familiar rules of construction, *547is exclusive of inferences of any other issues. —Dannelley v. State, 130 Ala, 132, 30 South. 452; Jackson v. State, 142 Ala. 55, 37 South. 920. In support of the judgment of the loAver court, it Avill be presumed that all other pleas than those on Avhich issue Avas joined were withdrawn or abandoned by the defendant. The pleas on which issue was joined, namely, 52, 53, 54, and 55, each and all charges that the policy of insurance Avas obtained on fraudulent statements made by the assured, and which he knew to be fraudulent when he made his application. The issue thus made did not involve the question of breach of warranty in the contract sued on, and did not involve more than mere misrepresentations material to the risk. These questions cannot, therefore, be regarded as anything more or less than moot questions in the case, which we decline to consided, although argued by counsel.

The evidence sought to be introduced, taken on interrogatories to certain witnesses, and which was excluded by the court at the instance of the plaintiff, Avas properly excluded. This evidence, under the issue, was wholly irrelevant and immaterial.

The defendant requested a number of Avritten charges, all of which were refused. As Ave have stated, the only question in the case was that of fraud in procuring the insurance. Mere misrepresentations or false statements were not enough, alone and of themselves, to support the averments of fraud in the pleas on which issue was joined. The charges requested sought a recovery on evidence or proof far short of that necessary to sustain the averments of the pleas. The court properly refused each and all of the charges as requested.

We find no reversible error in the record, and the judgment will be affirmed.

Affirmed.

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