Prudential Ins. Co. of America v. Herring

Supreme Court of Alabama

Prudential Ins. Co. of America v. Herring

1 So. 2d 392, 241 Ala. 121, 1941 Ala. LEXIS 332

CourtSupreme Court of Alabama

DecidedMarch 6, 1941

Docket6 Div. 813.

StatusPublished

This text of 1 So. 2d 392 (Prudential Ins. Co. of America v. Herring) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Prudential Ins. Co. of America v. Herring, 1 So. 2d 392, 241 Ala. 121, 1941 Ala. LEXIS 332 (Ala. 1941).

Pincite

Opinions

BROWN, Justice.

Special assumpsit by the personal repre- - sentative of Georgia Ann Herring, deceased, on three policies of life insurance, issued to the deceased on her application without medical examination, separately declared on in the three counts of the complaint.

The defendant pleaded the general issue, and special pleas numbered from three to twenty-eight, inclusive all except twenty-eight, setting up false representations as to the insured’s health in the application, alleged to have been made by the insured with intent to deceive and accepted by the defendant as true in the issuance of the respective policies, or that they were material to and increased the risk of loss, and false.

To these several, special pleas the plaintiff filed eight special replications, each of which embodied averments which did not, without condition, confess the averments of the pleas which they propose to answer. To illustrate, replication two avers “that if it is stated in said application that the insured’s condition of health was good at the time of signing the said application.” Also,, that defendant’s agent “did not ask the said Georgia Ann Herring m the presence of the Plaintiff if her health was good.” The pleas do not aver that the representations were made in plaintiff’s presence. [Italics supplied.]

The said several replications were subject to some of the grounds of demurrer specifically stated in the demurrer interposed to them, notably ground “28. The averment that ‘if’ any incorrect answers were written in said application plaintiff knew nothing about it, neither traverses nor confessed or aboids [avoids].” So,, also, ground 2, “Said replication does not traverse nor does it confess * * * the material averments of defendant’s plea.”' The court, therefore, erred in overruling the demurrer to the several replications. Smith Bros. & Co. v. Agee & Co., 178 Ala. 627, 59 So. 647, Ann.Cas.1915B, 129.

In view of this holding the pleadings must be recast for another trial, and therefore we deem it unnecessary to treat the other arguments which arise out of the issues as found by said pleas and the replications thereto.

For the error noted the judgment will be reversed.

Reversed and remanded.

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

Free access — add to your briefcase to read the full text and ask questions with AI

BROWN, Justice.

Special assumpsit by the personal repre- - sentative of Georgia Ann Herring, deceased, on three policies of life insurance, issued to the deceased on her application without medical examination, separately declared on in the three counts of the complaint.

The defendant pleaded the general issue, and special pleas numbered from three to twenty-eight, inclusive all except twenty-eight, setting up false representations as to the insured’s health in the application, alleged to have been made by the insured with intent to deceive and accepted by the defendant as true in the issuance of the respective policies, or that they were material to and increased the risk of loss, and false.

To these several, special pleas the plaintiff filed eight special replications, each of which embodied averments which did not, without condition, confess the averments of the pleas which they propose to answer. To illustrate, replication two avers “that if it is stated in said application that the insured’s condition of health was good at the time of signing the said application.” Also,, that defendant’s agent “did not ask the said Georgia Ann Herring m the presence of the Plaintiff if her health was good.” The pleas do not aver that the representations were made in plaintiff’s presence. [Italics supplied.]

The said several replications were subject to some of the grounds of demurrer specifically stated in the demurrer interposed to them, notably ground “28. The averment that ‘if’ any incorrect answers were written in said application plaintiff knew nothing about it, neither traverses nor confessed or aboids [avoids].” So,, also, ground 2, “Said replication does not traverse nor does it confess * * * the material averments of defendant’s plea.”' The court, therefore, erred in overruling the demurrer to the several replications. Smith Bros. & Co. v. Agee & Co., 178 Ala. 627, 59 So. 647, Ann.Cas.1915B, 129.

In view of this holding the pleadings must be recast for another trial, and therefore we deem it unnecessary to treat the other arguments which arise out of the issues as found by said pleas and the replications thereto.

For the error noted the judgment will be reversed.

Reversed and remanded.

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

Cite This Page — Counsel Stack

Bluebook (online)

1 So. 2d 392, 241 Ala. 121, 1941 Ala. LEXIS 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prudential-ins-co-of-america-v-herring-ala-1941.

Opinions

Related

Cite This Page — Counsel Stack