Summary
In Ex parte Comm. Life Ins. Co., 204 Ala. 561, 86 So. 522, and National Casualty Co. v. McCarn, 207 Ala. 322, 93 So. 31, the counts, held substantial compliance with Code form, contained averments that the insurance was for the term indicated and from year to year thereafter, "as the premiums were paid"; that at the time of the death of assured the premium on said policy had been paid or duly tendered, "and the said policy was in force and effect."
Summary of this case from National Life Accident Ins. Co. v. HannonOpinion
6 Div. 96.
June 17, 1920. Rehearing Denied October 21, 1920.
Huey Welch, of Bessemer, for appellant.
The complaint was insufficient. 147 Ala. 354, 40 So. 963; form 36, section 5362, Code 1907. Replication 2 was subject to the demurrers. 45 So. 208; 155 Ala. 265, 46 So. 578, 130 Am. St. Rep. 21; 171 Ala. 429, 55 So. 200; 96 Ala. 568, 11 So. 671; 166 Ala. 146, 51 So. 884. The payment of the initial premium is a condition precedent, which cannot be waived by an agent by any oral statement. Authorities supra. The question of waiver is not subject to oral proof, nor is it a question for the jury. 10 Ala. 231, 44 Am. Dec. 481; 45 So. 208; 166 Ala. 146, 51 So. 884; 45 So. 208. Failure to pay the additional premium for the permit worked a forfeiture. 109 Mass. 430, 25 Cyc. 876; 5 Ala. App. 392, 59 So. 336.
Goodwyn Ross, of Bessemer, for appellee.
The authorities cited in the opinion of the Court of Appeals are a sufficient answer to all the contentions made by petitioner, and this court will not review finding of facts or propositions of law as applied to such findings. 182 Ala. 34, 62 So. 63; 183 Ala. 451, 63 So. 88.
The count of the complaint was not subject to defendant's demurrer. It is a substantial compliance with form No. 12 of the Code, and the averment that the premiums had been paid or duly tendered the defendant was sufficient to charge that the policy was in force at the death of the insured. The plaintiff did not have to aver the facts or quo modo constituting the tender. Form No. 36, cited by appellant's counsel, applies to a plea of tender, and said form provides for setting out the amount of tender, etc.
As we understand the appellee's replication No. 2, it in effect sets up an extension of time, or an agreement, as to the time when the extra charge for going into the war should be paid; that is, a waiver of a forfeiture of the policy for a nonpayment of this extra charge at the time of entering the forbidden service without the payment of same. It does not set up the waiver of a condition precedent essential to making the policy operative, as considered in the case of Powell v. Prudential Co., 153 Ala. 611, 45 So. 208, and other cases relied upon in appellant's brief. Here, the pleas set up a forfeiture of the original policy, and not that it had never become binding and effective, and the replication sets up a waiver of what it claims to be a forfeiture, and false under the influence of the case of United States Co. v. Lesser, 126 Ala. 568, 28 So. 646.
The other insistences of error in the opinion of the Court of Appeals are either without merit, or relate to a finding of or an application of the facts to the law, and which we do not review. Postal Telegraph Co. v. Minderhout, 195 Ala. 420, 71 So. 91.
The petition for the writ of certiorari is denied.
ANDERSON, C. J., and McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.