64 So. 2d 618 | Ala. Ct. App. | 1953
The complaint consists of one count, declaring on a policy of insurance, in which it is averred that defendant, on the 1st day of September, 1947, insured the life of George Robert Hill, who died on the 2nd day of April, 1949, of which defendant has had notice.
Defendant pleaded the general issue. It is manifest from the record however, that both parties tried the cause to its conclusion as if issue had been joined upon a special plea. Dillworth v. Holmes Furniture Vehicle Co.,
On the trial plaintiff's exhibit No. 2 was introduced in evidence as the "insurance policy" under the terms of which recovery is sought in this case.
Plaintiff's contention was that George Robert Hill was employed by the Muscogee Manufacturing Company and was covered by a policy of group insurance issued to that company by appellant. Insured became totally and permanently disabled in August, 1948, and because of such disability, which continued until his death, he was entitled to a waiver of the premiums on said policy.
Plaintiff's exhibit No. 2, however, is merely the certificate issued to the employee, evidencing his right to benefits under the group policy. The certificate reads, in pertinent part, as follows:
* * * * * *
"This certificate on its effective date automatically replaces any certificate or certificates previously issued to the Employee under Group Life Policy No. 4780-L and Group Disability and Hospital and Surgical Expense Policy No. 4780, or under any other group policy issued by the Insurance Company, and such certificates are void.
"The provisions of the group policies in this certificate, as well as all other provisions, conditions and agreements contained in the group policies, apply to the insurance evidenced by this certificate. The group policies and the application therefor constitute the entire contract between the parties.
* * * * * *
"Upon receipt of satisfactory proof of the death of the Employee, while the group life policy and the insurance with respect to the Employee are in full force, the Insurance Company will pay the sum shown in Part I on the front page of this certificate to the beneficiary designated by the Employee and named herein, subject to all the provisions of thegroup life policy, and to the right of the Employee to change the beneficiary. (Italics ours.)
* * * * * *
It is also established law that in suits to recover under the terms of a group policy, "The policy contract is to be found upon examination of the provisions of the certificate in connection with those of the 'Master Policy'." Life Ins. Co. of Virginia v. Hanback,
In Wann v. Metropolitan Life Ins. Co., Tex.Com.App.,
"The parties to this contract expressly agreed that plaintiff in error was insured subject to the terms and conditions of the group policy. However complete the terms of the certificate may appear to be, the fact remains that the parties agreed it should be subject to the terms and conditions of another instrument. In the face of such an agreement plaintiff in error had no right, without the consent of the insurance company, to change this contract so as to entitle him to recover without regard to the terms and conditions of the policy expressly made a part of the contract. The terms of the certificate may have been materially modified by stipulations contained in the group policy." See also Carruth v. Aetna Life Ins. Co.,
The burden rested on the plaintiff to prove the existence of the contract. National Life Accident Ins. Co. v. Winbush,
The certificate provides in plain and specific terms that the employee was insured subject to the provisions of the group policy issued to the employer. The group policy was not offered in evidence and no effort was made to prove its contents.
The plaintiff having failed to make out her case, defendant was entitled to the general affirmative charge.
Reversed and remanded.