Opinion
4 Div. 741.
February 14, 1918. On Application for Rehearing, May 9, 1918.
Appeal from Circuit Court, Covington County; A. B. Foster, Judge.
Powell, Albritton Albritton, of Andalusia, for appellant. A. R. Powell, of Andalusia, for appellee.
The action is on an instrument sometimes called an insurance policy, a certificate of insurance; it being here denominated "beneficiary covenant." The instrument sued upon is set out in hæc verba as a part of count 1 of the complaint. On its face it purports to insure the assured against certain accidents; in this respect it partakes of the nature of an accident insurance policy. It undertakes furthermore, in the event of the death of the assured while the covenants are in force, that appellant corporation will pay to the beneficiary an amount named; in this aspect it partakes of the nature of a life insurance policy. The assured having died, the action is by the beneficiary to recover the amount agreed to be paid under the life insurance phase of the covenant or policy.
The first count is on the instrument which is set out in full. The second count follows the Code form as for an action on a policy of life insurance. Code, vol. 2, form 12, p. 1196. The third count declares on the instrument of insurance, but does not set it out in full; it sets up only the substance thereof, and alleges an appropriate breach.
The defendant demurred to each count of the complaint, and, the demurrers being overruled, it interposed the general issue, and 15 or 20 special pleas setting up breaches of the contract of insurance by the insured, alleged to have forfeited the right to recover under the insurance policy. To these special pleas the plaintiff interposed demurrers, which were sustained. Thereupon a trial was had on the general issue, resulting in a verdict and judgment for plaintiff. From that judgment defendant prosecutes this appeal.
It is first insisted that the court erred in overruling demurrer to counts 1 and 3 of the complaint, because of the failure of either count to allege that the insured died during the life of the policy, or that the policy or contract was in force at the time of his death. Neither of these counts was subject to these grounds of demurrer — the only ones insisted upon in argument. Each count does sufficiently allege that the contract or policy of insurance was in force when the insured, the "guest," as he is called therein, died.
It is next insisted that the trial court erred in sustaining plaintiff's demurrer to each of defendant's special pleas. Under the recent ruling of this court in the case of Locomotive Engineers', etc., Ins. Ass'n v. Jennie B. Hughes, 77 So. 352,
On Application for Rehearing.
Counsel for appellee insists that the record on this appeal does not affirmatively show that section 4579 of the Code is not applicable to the contract of insurance here sued upon, and that the case is not brought within the rule declared in Hughes' Case, 77 So. 352. In this counsel is in error. The complaint, to which the pleas were, of course, answers, set out the contract sued on in hæc verba, and on its face it shows that it is not included within the contracts of insurance covered by section 4579 of the Code, and that it is included within the exceptions mentioned in section 4562 of the Code. In the Hughes Case, 77 So. 352, two former decisions of this court were overruled, and it was there held that section 4579 of the Code did not apply to mutual associations insuring members without profit, and through the assessment plan. That the instrument here sued on is such a contract or agreement as was held not to be within this section, there can be no doubt. If the Case of Knight, 9 Ala. App. 428, 64 So. 196, decided by the Court of Appeals, can be construed to hold to the contrary, it is to that extent declared unsound, and is not to be followed by this court.Application overruled.