Christian Benevolent Burial Ass'n v. Huff

1 So. 2d 390, 241 Ala. 119, 1941 Ala. LEXIS 330

• Court: Supreme Court of Alabama
• Decided: February 20, 1941
• Docket: 1 Div. 138.
• Status: Published

Opinions

BROWN, Justice.

This is an action of assumpsit by the beneficiary named in a policy of burial insurance against the insurer to recover the sum of $125, with interest, designated in the policy as the “retail value of funeral if insured is twenty years of age at date of death.”

One of the counts of the complaint avers “that the defendant wholly neglected and refused to provide a funeral for Willie Richardson as provided by the terms of said policy,” to plaintiff’s damage.

The defendant interposed the plea of ‘‘not guilty” which was treated by the parties and the court as the general issue. The statute provides that in all actions except defamation, or for injuries to the person or to real or personal property “the general issue is an averment that the allegations of the complaint are untrue, and except as may be otherwise provided, puts in issue only the truth of such allegations.” Code 1923, § 9470.

The defendant’s special plea 2, to which demurrer was sustained, set up a forfeiture of the insurance for nonpayment of the weekly premiums. However, on the trial, under the plea of “not guilty” the defendant was permitted to offer evidence going to show forfeiture for nonpayment of premiums, the plaintiff was permitted to adduce evidence going to show knowledge and waiver, and the court in the oral charge clearly submitted these issues to the jury with full instructions thereon. Therefore, if it should be conceded that error intervened in the ruling on the demurrer to plea 2, it was error without injury. Birmingham Water Works Co. v. Barksdale, 227 Ala. 354, 150 So. 139; Atlantic Coast Line R. Co. v. Jackson, 225 Ala. 652, 144 So. 813.

Under the evidence adduced on the trial the issues were for the jury, and the affirmative charge requested by' the defendant was properly refused.

Defendant’s refused charges 2, 3, and 4 were refused without error; they were bad in form. City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937; Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 So. 40.

We find no reversible errors in the record.

Affirmed.

GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.