Action upon a life insurance policy. The cause was tried before the court without a jury, and judgment rendered for plaintiff. Among other defenses the defendant interposed plea 2, setting up fraudulent representation on the part of the insured, as set forth in the application for insurance, concerning the condition of her health. This plea did not aver that the defendant acted or relied upon such representations in the issuance of the policy, nor did the plea contain an equivalent of such averment — this being left wholly to inference. Demurrer to this plea was sustained.
That it must appear the party alleged to have been defrauded relied upon the false statements and acted to his prejudice is well recognized by all the authorities. 20 Cyc. 39; 12 R. C. L. 422; Wall v. Graham, 192 Ala. 396, 68 So. 298; Hooper v. Whitaker, 130 Ala. 324, 30 So. 355; Bish v. Van Cannon,94 Ind. 263. The fifth assignment of demurrer specifically pointed out this defect in the plea, and justifies the ruling of the court thereon, and renders unnecessary consideration of any other criticism of counsel in regard thereto.
Plea 4 sought to interpose as a defense the breach of a condition contained in the policy, to the effect that no obligation was assumed by the company, unless upon the date of the delivery thereof the insured was in sound health, and concluded by averring that at the time the policy was delivered the insured was "not in sound health." There were demurrers to this plea — among them, that it does not appear wherein the health of the insured was not good. This question was treated by the Supreme Court of Florida in Knights and Ladies of Security v. Glenn, 76 Fla. 592, 80 So. 516, 2 A.L.R. 1503, wherein it was held that so a general concluding averment was too vague and indefinite, and that such a plea was subject to demurrer. This holding meets our approval, and the demurrer was properly sustained.
Pleas 7 and 8 contain in substance the same defense sought to be presented in plea 5, and the ruling of the court as to this latter plea needs no consideration. In pleas 7 and 8 the defense relied upon was a release, or accord and satisfaction, to which the plaintiff filed replications setting up fraud in the procurement of the release. Demurrers to these replications were overruled, and we think properly so.
The argument is advanced that these replications set up statements on the part of the agent, which were mere matters of opinion or statements of law, and reliance is had upon Georgia Home Ins. Co. v. Warten, 113 Ala. 479, 22 So. 288, 59 Am. St. Rep. 129, and Rutter v. Hanover Fire Ins. Co., 138 Ala. 202,35 So. 33. Whatever may be said as to other representations set up in these replications, the statement attributed to the agent that the name of the insured was not on the company's record was a statement of fact, upon which the other statements were clearly based, and it was averred that the representations, as made, were false, made with the intent to deceive, and did deceive the plaintiff, and she was induced thereby *Page 189 to execute the release. Moses v. Katxenberger, 84 Ala. 95,4 So. 237; 3 Mayf. Dig. 817 et seq.; 20 Cyc. 20, 62; Tillis v. Smith Lumber Co., 188 Ala. 122, 65 So. 1015; Heinlein v. Imperial Ins. Co., 101 Mich. 250, 59 N.W. 615, 25 L.R.A. 627, 45 Am. St. Rep. 409.
The sixth plea alleges a failure on the part of the plaintiff to furnish a proof of death as required by the policy. No injury could have resulted from the action of the court in sustaining the demurrer to this plea, for the reason that the complaint alleges a waiver of this required proof, and therefore this defense was available under the plea of general issue. We are of the opinion the evidence shows action on the part of the defendant inconsistent with such requirement, and it does not appear, therefore, that the failure of such proof of death would be fatal to recovery. 25 Cyc. 885.
We are also of the opinion there was evidence tending to establish the averments of these replications. Upon careful examination of the record we conclude there was evidence sufficient to justify the judgment rendered, and it will be accordingly affirmed.
Affirmed.
ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.
Response to Application for Rehearing.