Opinion
3 Div. 759.
April 16, 1935. Rehearing Denied June 4, 1935.
Appeal from Circuit Court, Montgomery County; Walter B. Jones, Judge.
Action on a policy of life insurance by Ella E. Dopson against the United Benefit Life Insurance Company. From a judgment granting plaintiff's motion for a new trial, defendant appeals.
Affirmed.
Certiorari denied by Supreme Court in United Benefit Life Ins. Co. v. Dopson, 230 Ala. 660, 162 So. 546.
London, Yancey, Smith Windham and J. K. Jackson, all of Birmingham, for appellant.
Where defendant is entitled to the affirmative instruction, erroneously refused, error against plaintiff in the oral charge is error without injury. Lambert v. Southern R. Co., 214 Ala. 438, 108 So. 255; Lawson v. Norris, 215 Ala. 666, 112 So. 129; Southern R. Co. v. Randle, 221 Ala. 435, 128 So. 894; Tingle v. Worthington, 215 Ala. 126, 127, 110 So. 143. The presumption created by proof of death, notice, and introduction of the policy is not precisely a presumption of due payment of premiums, but constitutes only the establishment of a prima facie case. It is not evidence of itself, and becomes functus officio when evidence to the contrary is adduced. Commonwealth L. I. Co. v. Barr, 218 Ala. 505, 119 So. 11; Fourth Nat. Bank v. Woolfolk, 220 Ala. 344, 125 So. 217; Pilot L. I. Co. v Hawkins, 222 Ala. 218, 131 So. 889; National L. A. I. Co. v. Winbush, 215 Ala. 349, 110 So. 571; Shipp v. Davis, 25 Ala. App. 104, 141 So. 366; Alabama G. S. R. Co. v. Taylor, 129 Ala. 238, 29 So. 673; Lawson v. Mobile Electric Co., 204 Ala. 318, 85 So. 257; Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Kress Co. v. Barratt, 226 Ala. 455, 147 So. 386; 5 Wigmore on Evi. 451- 453.
R. S. Hill, Jr., and John L. Goodwyn, both of Montgomery, for appellee.
The burden was not on the plaintiff to show that the policy was in force on the date of the death of insured. Union Mut. Ins. Co. v. Peavy, 24 Ala. App. 116, 133 So. 300; Sovereign Camp, W. O. W., v. Carrell, 218 Ala. 613, 119 So. 640. If there is any evidence tending to make a case against it, defendant is not entitled to have a directed verdict. Railway Exp. Agency v. Brown, 25 Ala. App. 121, 141 So. 726; Pelzer v. Mutual W. H. Co., 217 Ala. 630, 117 So. 165; Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674; National L. A. Ins. Co. v. Hannon, 22 Ala. App. 483, 118 So. 170; Wood v. Hacker, 23 Ala. App. 12, 121 So. 437.
But a single question is presented for our consideration on this appeal — the propriety, vel non, of the trial court's action in setting aside, on appellee's timely motion, the verdict of the jury in appellant's favor and the judgment rendered thereon.
The suit was by appellee against appellant, based upon a policy of insurance issued by appellant on the life of Tennyson Dopson, with appellee named as beneficiary therein.
The complaint consisted of but a single count, in Code form. Code 1923, § 9531, form 12. The plea was "the general issue and with leave to give in evidence any evidence that might have been specially pleaded and with like leave to the plaintiff."
Plaintiff (appellee) made out, on the trial, her prima facie case for recovery by introducing testimony showing: (1) The death of the assured; (2) notice to defendant (appellant); (3) and by the introduction into the evidence of the policy sued on, which was in her possession. Union Mut. Ins. Co. v. Peavy, 24 Ala. App. 116, 133 So. 302.
Appellant sought to defeat recovery on the policy by the introduction of testimony tending to show that it had been forfeited by the nonpayment of premiums. Well, this was strictly defensive matter, and the burden was upon appellant to make good its contention. Union Mut. Ins. Co. v. Peavy, supra; Pilot Life Ins. Co. of Greensboro, N.C. v. Hawkins, 222 Ala. 218, 131 So. 889; Sovereign Camp, W. O. W., v. Carrell, 218 Ala. 613, 119 So. 640.
We have carefully examined the testimony in the bill of exceptions and are of the opinion and hold that there was at least a scintilla of evidence supporting appellee's claim on the trial, if, indeed, her prima facie case above referred to was not sufficient in this regard. Hence it was proper that the learned trial judge submit, as he did, in the first instance, the issue raised to the jury. Norwood Hospital v. Brown, 219 Ala. 445, 122 So. 411.
But he should have done so under correct instructions as to the law governing their consideration of the testimony.
The said judge charged the jury orally, in part, as follows:
(a) "Now, this presents a question of fact for you to determine from all the evidence in the case, the burden being on the plaintiff to reasonably satisfy you twelve men that the policy was in force and effect on February 4th when the assured, Tennyson Dopson died, and that it was kept in force and effect by the money-order payment of January 18th for $6.34."
(b) "The burden being on the plaintiff to reasonably satisfy you twelve men that the policy was in force and effect on February 4th when the assured, Tennyson Dopson died."
Due exception was reserved to each of the above-quoted excerpts from the said oral charge, and in each instance the same was erroneous. Authorities hereinabove.
The giving of each said quoted excerpt from the oral charge being made a separate ground for the motion by appellee to set aside the verdict returned against her, it was altogether right and proper that said motion should be granted, as it was.
What we have said hereinabove indicating that the action of the trial court complained of should be sustained, we deem it unnecessary to treat the other matters discussed in the briefs of counsel. They seem to present no new or novel questions.
The judgment is affirmed.
Affirmed.