United States Health & Accident Ins. v. Hill

PELHAM, J. —

Suit was originally instituted by the appellee in the inferior court of Birmingham, and was brought by certiorari, at the instance of appellee, to the circuit court. The judgment entry in the record shows that both parties appeared generally in the circuit court on the 31st day of December, 1912, and that the case was continued (by consent of both parties) to a later day in the term. When the case was subsequently called for trial, the defendant objected to going to trial because notice of the certiorari had not been served upon it. The objection came too late, after the' general appearance and consent to a continuance. — Goss v. Davis, 21 Ala. 479 ; Gould v. Meyer, 36 Ala. 565 . No ruling on the defendant’s motion to quash the certiorari is shown by the judgment entry, and the bill of exceptions shows that the motion was made, not only after appearance entered and pleas filed by the defendant, but after all of the evidence in the trial on the merits had been introduced by the plaintiff and defendant and the case submitted to the court for a decision. It appears from the record that the case was tried on January 2, 1913, and was taken under advisement by the court and judgment rendered for plaintiff on March 8, 1913, and that the motion to quash was argued and submitted to the court on *226 March 15, 1913, and was overruled on that date. The motion was not seasonably made, and error cannot be predicated on the court’s action in overruling it.

The court’s action in sustaining the plaintiff’s demurrer to pleas Nos. 3, 1, 5, 6, 7, and to amended plea 6, if error, -was without injury, as the defendant received the benefit, under pleas to which no demurrers were sustained, of all matters of defense sought to be set up in the pleas that demurrers were sustained to. — New C. C. & C. Co. v. Kilgore, 4 Ala. App. 334 , 58 South. 966 ; L. & N. R. R. Co. v. Mason, 4 Ala. App. 353 ; 58 South. 963 .

The witness Austin was shown to have sufficient knowledge on the subject to testify as an expert, and the court was in error in sustaining the plaintiff’s objection to the question asked this witness: “I will ask you, Mr. Austin, whether or not, in your opinion, the two signatures exhibited to you were written by the same person.” One of the signatures referred to is shown to have been the signature to the application for the insurance policy the basis of plaintiff’s cause of action, that the defendant contended was the genuine signature of the plaintiff, and the other signature was one the plaintiff had written at the request of the defendant in open court while under cross-examination by the defendant.

As said by Briüiceuu, O. J., in writing the opinion of the court, in Williams v. State, 61 Ala. 33 , 41: “There are cases in which a witness denies his signature, and may on cross-examination be compelled in the presence of the court to write his name for the purposes of comparison/-’ (Italics ours.) The signature written in the presence of the court becomes a part of the examination of the witness and takes it out of the rule against making a comparison between the writing in question and *227 extraneous papers not in evidence. — Griffin v. Association, 151 Ala. 597, 603 , 44 South. 605 .

The court was not in error in refusing to allow the defendant, against the plaintiffs objection, to prove a custom of the defendant company in issuing its policies, of which the plaintiff is not shown to have had knowledge.

The plaintiff having denied signing the. application shown him and offered in evidence, and no proof having been made under the ruling of the court, contradictory of this testimony and going to show that the plaintiff signed the application, the .court properly refused to admit it in evidence against the objection of the plaintiff on the evidence before the court; but the evidence of the witness Austin, erroneously excluded, would make the application admissible, if he testified in answer to the question propounded to him that in his opinion the same person wrote both signatures.

Each of the special pleas relied upon by the defendant to defeat a recovery on the policy set up the written application “signed by him [plaintiff],” and, the proof having failed to establish the fact that such application had been signed or made by the plaintiff, under the rulings of the court on the admissibility of testimony, the conditions, representations, or warranties contained in the application and set up by the pleas as a forfeiture were not before the court, and could not, under the evidence admitted by the court, operate to show a forfeiture or to prevent a recovery because of the falsity of any representation or warranty contained therein. There was no plea filed setting up and relying alone upon the condition contained in the policy providing that in accepting the policy the insured warranted the truth of the statement of the schedule of warranties indorsed on .the policy; but each and all of the special pleas set up *228 and relied upon the statements contained in the written application alleged to have been made and signed by the defendant, and these allegations were not proven under ■the evidence admitted, and the pleas based on them necessarily failed. On the evidence admitted by the court on the issues tendered by the pleading on which the case was tried, the court properly rendered a judgment for the plaintiff, but was in error in not admitting the evidence of the witness Austin above pointed out as to the genuineness of the signature to the application, and this evidence would have made the application admissible if the answer to the question had been favorable to the defendant.

There was no material variance between the policy declared upon and the policy introduced in evidence in support of the plaintiff’s suit. The complaint would not be demurrable even if it failed to aver the dates of issurance and duration properly, if it sufficiently appeared that the policy covered the loss. — Ins. Co. v. King, 106 Ala. 519 , 17 South. 707 .

For the error of the court that we have pointed out and discussed, its judgment must be reversed.

Reversed and remanded.