Opinion
6 Div. 740.
December 16, 1926.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Bankhead Bankhead and A. F. Fite, all of Jasper, for appellant.
Defendant's pleas were not subject to demurrer. Mutual Life Ins. Co. v. Allen, 174 Ala. 511, 56 So. 568; 37 C. J. 404; Gallant v. Metropolitan Life Ins. Co., 167 Mass. 79, 44 N.E. 1073; Metropolitan Life Ins. Co. v. Howle, 62 Ohio St. 204, 56 N.E. 908. The policy offered in evidence was not signed by appellant, and objection thereto was erroneously overruled. Appellant's answers to interrogatories made the question whether appellant's pleas were proved a question of fact, and the affirmative charge should not have been given for appellee.
Curtis, Pennington Pou, of Jasper, for appellee.
If there was technical error in sustaining demurrer to plea 7, it was without injury, since defendant had the benefit of said plea under pleas that were submitted to the jury. Mutual Life Ins. Co. v. Witte, 190 Ala. 328, 67 So. 263. Pleas 9 and 10 were too indefinite in averment and were subject to demurrer. Mutual Life Ins. Co. v. Witte, supra; Empire Ins. Co. v. Gee, 171 Ala. 435, 55 So. 166; Mutual Ins. Co. v. Allen, 174 Ala. 517, 56 So. 568. In absence of a plea of non est factum, the contract is presumed to have been executed by defendant's authority. Endowment Department v. Harvey, 6 Ala. App. 239, 60 So. 602. Plaintiff's proof made out a prima facie case, defendant offered no evidence in support of its pleas, and plaintiff was entitled to the affirmative charge. 25 Cyc. 925; National Life Acci. Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45.
We have examined the several demurrers directed to pleas and find no reversible error. If there be technical error in ruling on plea 7, its comparison with plea 3, to which demurrer was overruled, indicates that no error was committed in sustaining demurrer to plea 7. Mut. Life Ins. Co. v. Witte, 190 Ala. 327, 67 So. 263; Mass. Mut. Life Ins. Co. v. Crenshaw, 195 Ala. 263, 70 So. 768. The latter was no broader than plea 3 and presented the same defense.
Demurrers were sustained to pleas 9 and 10. The provisions of the contract as to good or sound health are within the power of contract of the parties. 37 C. J. p. 404; Gallant v. Metropolitan Life Ins. Co., 167 Mass. 79, 44 N.E. 1074; Cherokee Life Ins. Co. v. Brannum, 203 Ala. 145, 82 So. 175. However, the plea of avoidance thereunder was not sufficient to fairly apprise the adverse party of the contemplated or real defense, or not so distinctly stated as to be understood by the other party, respective counsel, the court, and the jury. 2 Cooley's Briefs, 1178; Empire Ins. Co. v. Gee, 171 Ala. 435, 441, 55 So. 166; Mutual Life Ins. Co. v. Witte, 190 Ala. 327, 330, 67 So. 263; Mutual Ins. Co. v. Allen, 174 Ala. 511, 517, 56 So. 568. This is in accord with the distinction in pleading between the required averments of a complaint and a plea. Dwight Mfg. Co. v. Holmes, 198 Ala. 590, 73 So. 933.
The contract in evidence is presumed to have been duly executed by defendant in the absence of a sworn plea of non est factum. Endowment Dept., etc., v. Harvey, 6 Ala. App. 239, 60 So. 602.
The trial court could not properly have done otherwise than give the general affirmative charge duly requested by the plaintiff in this case. The defendant does not deny that the evidence received made a prima facie case for the plaintiff. That it did is in accord with established law. Plaintiff, to establish a prima facie case, must prove: (1) The existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy; and (3) the giving of notice and proof of death, as required by the policy. On the other hand, the burden is on the company to show a violation of conditions avoiding an otherwise valid policy. The plaintiff proof met all these requirements. It established for him a prima facie case, and, if the jury believed his evidence, there was no verdict they could render except for him, inasmuch as the defendant offered no evidence whatever in support of its pleas.
Appellant's answer to the fourth interrogatory merely stated its reason for nonpayment of the claim, in practically the words of the pleas that were filed. The answer was signed by L. T. Ward, the company's local manager, who stated that he was answering only on information and belief, and did not pretend to be testifying from personal knowledge. His testimony was not and could not have been competent legal evidence for the purpose of showing the fact, and was a mere statement of the defense relied upon by the defendant. He was not placed on the stand to testify. Plaintiff having proved his case, and no evidence being offered by way of defense, it was proper for the court to give the general affirmative charge. Nat. Life Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45; McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.