Opinion
6 Div. 202.
October 23, 1924.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Jacobs Abercrombie, of Birmingham, for appellant.
The complaint was subject to demurrer in failing to state the period for which the policies were issued. There was error in rulings on the pleadings. 3 Cooley on Ins. 2829, 2459; 1 C. J. 442.
G. M. Edmonds and Albert Rosenthal, both of Birmingham, for appellee.
A breach of a condition in a policy is waived by the insurer if, after knowledge the insurer treats the policy as still in force. L. C. Ins. Co. v. Eubanks, 19 Ala. App. 36, 94 So. 198; Nat. L. A. Ins. Co. v. Jackson, 18 Ala. App. 347, 92 So. 201; Queen Ins. Co. v. Young, 86 Ala. 424, 5 So. 116, 11 Am. St. Rep. 51; 29 Cyc. 194.
The submission was on motion and on merits. When the whole record and the agreement of counsel recited in the bill of exceptions are considered, we are of opinion that the policies of insurance declared upon were before the trial court and jury. The requested charges, as well as the oral charge, referred to certain provisions thereof. We are bound by the record and bill of exceptions as signed by the judge presiding at the trial, and the motion to strike is denied.
The trial was had on the second, third, and fourth counts of the complaint as amended, declaring on insurance policies for sickness and accident. Demurrer sufficiently challenged the several counts for failure to state the facts showing that the policies of insurance were in full force and effect and covered the period for which compensation was claimed. Demurrers were properly sustained. National L. A. Co. v. Hannon, 101 So. 892; National Cas. Co. v. McCarn, 207 Ala. 321, 93 So. 31. These counts, as last amended, are shown by the judgment entry to have been further challenged by the same grounds of demurrer which were overruled. The said several amended counts merely state that defendant insured plaintiff on the date indicated, and fail to aver the period or periods of time for which the insurance was effective and to show that the same extended to or through the time for which compensation was sought by this suit. This was not a substantial compliance with the Code form. National L. A. Co. v. Hannon, 101 So. 892;fn1 National Cas. Co. v. McCarn, supra. For these errors the judgment of the circuit court is reversed.
Post, p. 184.
Defendant's plea 1 was the general issue, and there was error in sustaining demurrer thereto. Plea 3 was drawn under the averred conditions of the policies of insurance declared on. The grounds of demurrer sustained thereto are inapt.
The rules of good pleading, and reasons therefor, have been often adverted to by this court. Brookside-Pratt Min. Co. v. Booth (Ala. Sup.) 100 So. 240; Hines v. McMillan, 205 Ala. 17, 87 So. 691. Pleas C and D tendered an issue of fact under the terms of the policies declared on by plaintiff and set out in the plea by defendant in bar of the right of recovery. There was error in sustaining demurrer to said pleas.
Demurrer to plea A being overruled, plaintiff replied, saying:
"For replication and answer to said pleas A and B separately and severally, and says that defendant had notice of said venereal diseases, if any, and thereafter received and accepted premiums on said policies and thereby waived said condition or conditions in said policies, and that said notice of said diseases aforesaid were known to defendant before said claim was made, and that defendant thereafter accepted premiums from plaintiff, and said defendant is estopped from pleading same."
Defendant's demurrer thereto was properly overruled. The averment in the replication is that defendant had notice of the disabling disease and thereafter received and accepted premiums and waived the conditions of the policies as to the disability from such cause. The effect of notice to general and special agents as waiver of conditions of the policy was discussed in South. States F. Ins. Co., v. Kronenberg, 199 Ala. 164, 74 So. 63, and Fire Ass'n v. Williams, 200 Ala. 681, 77 So. 156. See Life Cas. Ins. Co. v. Eubanks, 19 Ala. App. 36, 94 So. 198; Pacific Mutual Life Ins. Co. v. Hayes, 202 Ala. 450, 80 So. 834; Cooley on Insurance, p. 2459.
Defendant's rejoinders sought to support its respective pleas. For illustration, rejoinders 2 and 3 set up facts avoiding the replication as to notice of plaintiff's having a venereal disease, saying "under the terms of said policy of insurance defendant insured the plaintiff against disability resulting from sickness, and that the condition or provision of said policy as set out in said plea and referred to in said replication merely constitutes an exception according to the terms of the policy, excepting disability from venereal diseases from the general risk disability from sickness. Defendant further avers that it had no knowledge, information, or notice prior to the issuance of said policy that the plaintiff had any venereal disease, and defendant avers that at the time defendant first received notice that the plaintiff had venereal disease said policy was in full force and effect, and that it has continued in full force and effect continuously from that time to the filing of this suit, and defendant further avers that said policy contains no provision authorizing the defendant to cancel said policy, when it is in force and effect, nor authorizing defendant to refuse to accept premiums upon said policy for any reason at a time when said policy is in force and effect." This pleading was pertinent, and should have been permitted.
The case should be retried on pleading conforming to the above rulings.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.