American Nat. Ins. Co. v. Moss

BROWN, J. The first count of the complaint is in the form prescribed by form 12, § 9531, of the Code of 1923, for suits on policies óf life insurance, as revised and brought forward in the Code of 1923, and avers that the amount claimed is “due on a policy whereby the defendant on, to wit, the 16th day of May, 1924, insured the life of W. H. Moss, who died on, to wit, the 18th day of June, 1924.” The appellant insists that this count of the complaint is subject to the objection that it does not show that the death of M,oss occurred within the life of the policy, citing as an authority to support this contention National Life & Accident Ins. Co. v. Hannon, 212 Ala. 184, 101 So. 892. In the case cited the contract declared on was not a straight life policy, hut one insuring against loss of life resulting from bodily injury- — an accident policy. The fact which matures a policy of life insurance is the death of the insured within the life of the policy. Supreme Com. of Knights of the Golden Rule v. Ainsworth, 71 Ala. 436, 46 Am. Rep. 332; Weil v. Travelers’ Ins. Co., 16 Ala. App. 641, 80 So. 348. The averment that the sum claimed was “due" on the policy carried the burden to the plaintiff of showing that the death of Moss occurred within the period covered by the policy, and the objection urged against this count of the complaint is not tenable. National Life & Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45. The only assignment of error on the record is predicated on the action of the court in overruling the motion for a new trial, and the other questions argued relate to the giving and refusal of charges pert'ain-ing to the defendant’s liability on the contract of insurance, which appears to have b'een offered in evidence, but is not set out in the bill of exceptions. Under these circumstances we cannot determine whether or not the court properly dealt with the charges in question. Mooneyham v. Herring, 210 Ala. 168, 97 So. 638; Lamar v. King, 168 Ala. 285, 53 So. 279. Affirmed. ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.