Opinion
8 Div. 589.
November 11, 1923. Rehearing Denied November 22, 1923.
Appeal from Circuit Court, Lauderdale County; Chas. P. Almon, Judge.
Bradshaw Sims, of Florence, for appellant.
The defendant was entitled to the affirmative charge on its special plea No. 5. Hand Lbr. Co. v. Hall, 147 Ala. 561, 41 So. 78; Borden v. Vinegar Bend Lbr. Co., 7 Ala. App. 335, 62 So. 245. The giving of charge 2 for plaintiff was error.
J. Fred Johnson, Jr., of Florence, for appellee.
The law will not allow one to mislead another to his injury, whether by ignorance, negligence, or design. 145 Ark. 420, 224 S.W. 953, 13 A.L.R. 1387; 99 Ohio St. 343, 124 N.E. 223, 7 A.L.R. 182.
Whether or not the defendant's special plea 5, setting up a release, would have been sufficient if tested by demurrer, Code 1907, § 3973, we need not decide as the same was proven without dispute, and the defendant was entitled to the general charge, unless the evidence supported the material averments of the plaintiff's replication to said plea. The replication No. 5 neither denies nor confesses the execution of the release, but seeks to avoid same, if it was executed, and was bad as against an appropriate demurrer. Cen. of Ga. v. Williams, 200 Ala. 75, 75 So. 401; Smith v. Agee, 178 Ala. 627, 59 So. 647, Ann. Cas. 1915B, 129. The replication also, in the conjunctive, seeks to set up fraud in procuring the release if it was given; that it was not intended that the paper signed by plaintiff was to operate as a release of the entire claim, but related only to the weekly indemnity then paid; and that it was the same kind of paper that he had always signed when receiving other weekly indemnity. The said replication also sets up a waiver of all rights of the defendant under the release by subsequently tendering to the plaintiff one week's indemnity for partial disability. While this replication was not only demurrable as above suggested, and was also bad for setting up several separate and distinct answers to the plea, if in the disjunctive, still these defenses seem to be in the conjunctive, and, whether the replication be bad or not, an appropriate demurrer was not interposed, or, if it was, is not insisted upon in brief of counsel, so we must consider the same as an answer to said plea 5.
There was no proof as to the first averment, as the undisputed evidence shows that plaintiff did sign the release, and that there was no fraud on the part of defendant's agents in procuring said signature. While the plaintiff testified that the release signed was the same "sort of check I always got when I got my weekly indemnity," there was no proof that he got other weekly indemnities, and, if it be inferred that he did, they may have been for a separate and distinct injury, which may have been entirely covered by but one week's indemnity. In other words, said other checks may have been in full of the claim instead of a partial payment merely. Moreover, the statement signed by the plaintiff recites that he had never previously made a claim for indemnity under an accident or health policy. Nor was there any proof of a waiver of the release by the defendant by subsequently tendering plaintiff one week's indemnity for partial disability as averred in the last part of said replication. The defendant having proved its plea 5, and the plaintiff having failed to offer proof in support of the material averments of his replication to said plea, the trial court erred in refusing the general charge requested by the defendant.
The trial court also erred in giving charge 2 at the request of the plaintiff, as it, in effect, assumes that the blanks were called for after the check was given when the evidence was in sharp conflict as to this fact.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, GARDNER, and MILLER, JJ., concur.