Opinion
6 Div. 453.
October 31, 1933.
Appeal from Court of Common Claims, Jefferson County; E. N. Hamill, Judge.
Action on a policy of health and accident insurance by Eloise H. O'Neal against the American Bankers' Insurance Company. From a judgment for plaintiff, defendant appeals.
Affirmed.
Count 3 of the complaint is as follows: "Plaintiff claims of defendant the sum of to-wit: $252.38, due on a contract of insurance, whereby the defendant on, to-wit, February 27th, 1930, insured the said plaintiff against illness, which resulted to plaintiff on, to-wit, July 20th, 1932, when plaintiff became ill from an acute appendix; plaintiff avers that she became sick within the terms of the policy and that she had performed all of the other conditions of the said contract on her part; that the premiums on said policy had been paid, and that said contract was in force and effect on the date aforesaid; that defendant has breached the said contract on its part in that it has failed and refused to pay illness indemnities and hospital benefits under the terms of said policy, after plaintiff has been confined in a hospital for, to-wit, 9 days and thereafter confined within doors for, to-wit, 43 days, and thereafter suffered from illness and/or disease for, to-wit, 12 days, without confinement, of which illness of plaintiff the defendant has had due notice; said policy is the property of plaintiff and said sum of money with the interest thereon, is still unpaid."
David J. Davis and C. J. Griffith, both of Birmingham, for appellant.
A complaint on a health and accident policy which does not aver the period or periods of time for which the insurance is effective is not in substantial compliance with the Code form and is subject to demurrer. Life C. I. Co. v. Foster, 212 Ala. 70, 101 So. 765. It must appear in a complaint on an accident and health policy from the facts averred, and not from mere conclusions, that the policy was in force and effect at the time the disability occurred. Benefit Ass'n v. Armbruster, 217 Ala. 282, 116 So. 164, 165.
Patrick Appelbaum, of Birmingham, for appellee.
A complaint on an insurance policy substantially in Code form is sufficient. Count 3, 5, and 6 are good counts. Code 1923, § 9531; Police F. I. Ass'n v. Crabtree, 215 Ala. 36, 109 So. 156; Equitable L. A. Soc. v. Roberts, 226 Ala. 8, 145 So. 157; National C. Co. v. McCarn, 207 Ala. 321, 93 So. 31; Sov. Camp v. Hubbard, 217 Ala. 431, 116 So. 163; Amer. Standard L. I. Co. v. Tolliver, ante, p. 363, 146 So. 625. Pleadings are to be given a reasonable, common-sense construction. Boriss Const. Co. v. Deasey, 212 Ala. 528, 103 So. 470. Common counts are sufficient to recover money on contracts when nothing remains to be done but the payment of money. Varner v. Hardy, 209 Ala. 575, 96 So. 860; Elrod L. Co. v. Moore, 186 Ala. 430, 65 So. 175.
The complaint was originally in two counts. Count 1 declared on a contract of insurance, and count 2 was the common count declaring on an account due July 20, 1932. Demurrer to this complaint was sustained. Plaintiff was allowed to file an amended complaint consisting of counts 3, 5, and 6, to which and to each count thereof the defendant filed demurrer. These demurrers were overruled and defendant filed plea of the general issue in short by consent, etc.
There are numerous assignments of error, but appellant only presents in its brief the rulings of the court on the demurrers, thereby waiving all other assignments. The cause was tried by the judge, sitting without a jury. Judgment was rendered for plaintiff, and from that judgment this appeal is taken.
We may say in the outset that appellee's contention that the cause was tried on count 2, which is the common count for an account, is not borne out by the record. The demurrer filed October 22, 1932, went to both counts of the complaint. When this demurrer was sustained, it eliminated both counts of the complaint, and the amended complaint filed November 22d did not contain the common count as did the original complaint.
The cause proceeded to trial on counts 3, 5, and 6 and issue joined on these counts.
If, therefore, there is a good count in the complaint, although some of them may be bad, the judgment will be referred to the good count, and if there is evidence to sustain it, the judgment will not be reversed. Turnipseed v. Burton, 4 Ala. App. 612, 58 So. 959; Morgan v. Embry, 17 Ala. App. 276, 85 So. 580; Lang v. Leith, 16 Ala. App. 295, 77 So. 445.
Under decisions of the Supreme Court in Life Casualty Insurance Company v. Foster, 212 Ala. 70, 101 So. 765, and Benefit Assn. Ry. Employees v. Armbruster, 217 Ala. 282, 116 So. 164, 165, counts in a complaint similar to counts 3 and 6 are held to be bad and subject to demurrer, in that they fail to aver the term of the policy, and because the allegation that, at the time of the alleged illness, the policy was in full force and effect, is a mere conclusion of the pleader. But, in Sov. Camp, W. O. W., v. Gunn, 224 Ala. 444, 140 So. 410, it is pointed out by Knight, J., that the allegation "for the term of _____ years" has been dropped from the form in the Code of 1923. It is also pointed out by Brown, J., in Am. Nat. Ins. Co. v. Moss, 215 Ala. 542, 112 So. 110, where it is alleged in a complaint that the amount claimed was due carried with it the burden to the plaintiff of showing injury claimed for occurred within the period covered by the policy. In passing on a complaint similar to the complaint in the instant case, Foster, J., has pointed out the change in the form laid down in the Code of 1923, form 12, § 9531, and approved the action of the trial court in overruling demurrers on grounds pointing out the above noted defects. Following former decisions, Thomas, J., speaking for the court, affirms the action of the lower court in overruling demurrers to a count similar to the count here considered. Am. Bankers Ins. Co. v. Dean (Ala. Sup.) 150 So. 333.
Count 3 being a good count, and the judgment of the court on the facts being referable to that count, it becomes unnecessary to pass upon counts 5 and 6.
There is no reversible error, and the judgment is affirmed.
Affirmed.