Opinion
4 Div. 801.
November 28, 1918.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
Hill, Hill, Whiting Thomas, of Montgomery, and McDowell McDowell, of Eufaula, for appellant.
Chauncey Sparks, of Eufaula, for appellee.
The action is for a balance of $140 due, as claimed, upon a life insurance policy issued on the life of plaintiff's deceased wife. The amount due and recoverable depends upon the construction to be placed on the terms of the policy and the constitution and by-laws of the defendant association.
It is conceded by defendant that $15 remains due after a partial payment of $160. The record shows that the trial judge instructed the jury to find for the plaintiff, if they believed the evidence. The jury found for the amount sued for, with interest.
The only error insisted upon is the giving of the affirmative charge for plaintiff.
This charge was properly given, and defendant should have raised the question of what amount was due by requesting an instruction limiting plaintiff's recovery to the amount authorized by a proper construction of the policy.
Failing to do that, the question could be raised only by a motion to set aside the verdict as being excessive under the law and the evidence. Cook, etc., Co. v. Bell, 177 Ala. 618, 635, 59 So. 273.
As the matter is here presented, the assignment of error must be overruled.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.