48 So. 475 | Ala. | 1909
The principles of law controlling the pleadings in this case were determined on former appeal. —Washburn v. Union Central Life Insurance Co., 143 Ala. 485, 38 South. 1011. Since the remandment of the cause two additional pleas, 4 and 5, have been filed by tile defendant. The fourth plea, like the second and third, sets up the defense of forfeiture of the policy sued on. Replications 17 to 24, inclusive, which had been filed to pleas 2 and 3, were also filed to plea 4. In principle, no new question is raised by this last plea, different from those considered when the case was here before. The fifth plea is one of set-off. The real issue in the case is that of waiver vel non of the forfeiture pleaded, which is raised by the replication to the pleas setting np this defense. In the several replications the waiver of the forfeiture is pleaded in different ways; but this does not impose upon the plaintiff the duty of supporting by the evidence all of the replications in order to a recovery. It is sufficient answer to the pleas of forfeiture, if any one of the replications setting up waiver is established.
It is needliess to repeat here what was said on former appeal as to the law in respect of forfeiture and the waiver thereof in such cases, and we content ourselves in referring to that case for what was then said.
The present case was tried by the court below without a jury, and on the facts in evidence a judgment was rendered. in favor of the plaintiff. Upon the introduction of evidence on the trial many objections were made and exceptions reserved to the rulings of the court. These exceptions are not discussed in detail by counsel in their briefs, nor do we find it necessary to so treat them in this opinion. Under the issues made by the replications, the evidence of any fact or circumstance which fended, though slightly, to show a waiver of the alleged forfeiture by the defendant, was competent and legal.
On the legal evidence in the case, and in which there was no conflict, the trial court, who heard the cause without a jury, was justified in the conclusion that there had been a waiver by the defendant of the alleged forfeiture, and in rendering judgment for the plaintiff. This being-true, it may be conceded that the court committed errors in the admission of other evidence that was irrelevant and illegal, without affecting the conclusion reached,
The judgment, hoAvever, must be corrected. Under the plea of set-off the defendant was entitled to a credit of the amount of the unpaid premium note. This was provided for in the contract on which the plaintiff sues, and it was not required to be presented to the plaintiff, as administrator of the insured, to save it from the bar of the statute of non-claim as a credit on the policy. With this correction, the judgment will be affirmed.
Corrected and affirmed.