Opinion
4 Div. 770.
April 21, 1931. Rehearing Denied May 19, 1931.
Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.
Action on a policy of life insurance by Horace A. White, as administrator of the estate of Jesse M. White, deceased, against the Equitable Life Assurance Society of the United States. From a judgment for defendant, plaintiff appeals.
Affirmed.
C. L. Rowe, of Elba, for appellant.
The failure of an insurance company to reject an application for reinstatement of a policy within a reasonable time and notify insured of the rejection will amount to an effective revival. 14 R. C. L. 990; Lechler v. Montana L. I. Co., 48 N.D. 644, 186 N.W. 271, 23 A.L.R. 1193; Life Cas. Co. v. Street, 213 Ala. 588, 105 So. 672. After wrongful cancellation of a policy of insurance, the insured is under no obligation to tender subsequently accruing premiums when they become due unless the circumstances show that, if the premium was offered, it would be accepted. Brooklyn L. I. Co. v. Bledsoe, 52 Ala. 538; N.Y. L. I. Co. v. Norris, 206 Ala. 656, 91 So. 595; Watts v. Metropolitan L. I. Co., 211 Ala. 404, 100 So. 812. When the insurer has declined payment assigning one specific ground, and the owner of the policy, in good faith and without knowledge of any other defense the insurer might have, incurs expense in undertaking to enforce payment of the amount of the policy, being prepared, as he thinks, to meet that ground, the insurer is held to have waived all other grounds of defense. Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909; Murphy v. Schuster Springs Lbr. Co., 215 Ala. 412, 111 So. 430. Plaintiff having demanded a jury trial, it was error to render judgment on issues, whereon defendant had the burden of proof, for defendant, without submitting the same to the jury. Ex parte Florida Nursery Co., 201 Ala. 97, 77 So. 391.
Wilkerson Brannen, of Troy, and W. M. Brunson, of Elba, for appellee.
Payment of premiums is of the essence of the contract of insurance, and failure to pay calls for absolute forfeiture when so provided by the terms of the contract. A wrongful cancellation, whether notice of such cancellation is given to insured or not, does not excuse payment or tender of premiums subsequently due. Brooklyn L. I. Co. v. Bledsoe, 52 Ala. 538; Mobile L. I. Co. v. Pruett, 74 Ala. 487; Imperial L. I. Co. v. Glass, 96 Ala. 568, 11 So. 671; Security Mut. L. I. Co. v. Riley, 157 Ala. 553, 47 So. 735; Watts v. Metropolitan L. I. Co., 211 Ala. 404, 100 So. 812. Where there is a plea which presents a full and valid defense to a cause of action, and, a demurrer to a replication to the plea being sustained, the plaintiff declines to plead further, the court properly renders judgment for the defendant. Brown v. Comm. F. T. Co., 86 Ala. 189, 5 So. 500; Guilford v. Kendall, 42 Ala. 651; Gaston v. Parsons, 8 Port. (Ala.) 469; Zirkle v. Jones, 129 Ala. 444, 29 So. 681; Terry v. Allen Bros., 132 Ala. 657, 32 So. 664; Andrews v. Hall, 132 Ala. 320, 31 So. 356; Blankenship v. Owens (Ala.) 27 So. 974.
This was a suit by appellant against appellee on a policy of life insurance issued on the life of appellant's intestate, Jesse M. White.
There is in the record an agreement of counsel which indicates that two suits — this one and another — on two separate policies, are to be governed by this appeal; the said agreement reciting "a consolidation" of the two suits, etc.
Only one complaint is before us, however, so we will deal with the questions raised with reference to the suit of which it is a part, leaving the said "agreement" to, as we apprehend, control the disposition of the other suit referred to in it.
To appellant's complaint — in Code form — appellee filed a plea, alleging in essential substance that the policy sued on was not in force at the time of the death of plaintiff's intestate, by reason of failure of intestate to keep the premiums on said policy paid up, according to the provisions of same; the particular allegation of default in payment of said premiums being with regard to the payment of the premium due on August 1, 1926, the time for the payment of which was by mutually satisfactory agreement extended to January 1, 1927. This plea appears to be in all respects sufficient, and was unchallenged by demurrer.
Appellant filed a replication to said plea, alleging, as we deem pertinent here, that, while his intestate did default in the payment of the annual premium due August 1, 1926 (payable, as we have before mentioned, on January 1, 1927), yet, by a procedure which he describes, intestate undertook in, to wit, the month of February, 1927, to revive, or reinstate, said policy; and that, performing the acts necessary, according to appellee's advice, to reinstate said policy, he heard nothing from appellee until, to wit, February 3, 1928, at which time he was advised that the reinstatement of the policy had been denied in, to wit, the month of February or March, 1927; that intestate then, to wit, in February or March, 1928, undertook to have said policy reinstated, but that it never was done, and he died with the status as we have undertaken to outline.
It plainly appears from the allegations of said replication that the annual premium due on said policy on August 1, 1927, was neither paid nor tendered by intestate to appellee.
Demurrers filed by appellee to the said replication were sustained. And, appellant declining to plead further, the court rendered judgment in its favor.
This appeal, without bill of exceptions, follows. Whatever might be said with regard to intestate's efforts to revive, or reinstate, the policy in February, 1927, he was not excused from paying, or at least offering to pay the annual premium due August 1, 1927.
The demurrers to the replication were properly sustained. Brooklyn Life Ins. Co. v. Bledsoe, 52 Ala. 538; Watts v. Metropolitan Life Ins. Co., 211 Ala. 404, 100 So. 812.
Superior to anything we could say, in elaboration of this holding, would be to quote, copiously, from the opinion in the Bledsoe Case, supra, which seems to be, in all respects, reaffirmed in the opinion on rehearing in the Watts Case, supra. That appears useless, and the reader is referred to the opinion in the said Bledsoe Case for the reasons for our holding.
Appellee's plea, as above indicated, set forth a full and complete defense to the action. Demurrers having been sustained to appellant's replication thereto, and appellant declining to plead further, the action of the court in rendering judgment for appellee is here affirmed. Brown v. Commercial Fire Insurance Co., 86 Ala. 189, 5 So. 500; Andrews v. Hall et. al., 132 Ala. 320, 31 So. 356.
Affirmed.