Prudential Ins. Co. of America v. Herring

The appellee states as his "Proposition One" that: "A replication in confession and avoidance that avers, 'thatif it is stated in said application that the insured's condition of health was good at the time of signing said application,' is a tacit admission that it is stated in said application that the insured's condition of health was good and is not demurrable for failure to confess and avoid or traverse." Citing Inter-Ocean Casualty Co. v. Ervin, 229 Ala. 312,156 So. 844.

An examination of the cited case shows that the replication in that case was not demurred to, and the case does not sustain the stated proposition.

In the instant case the replications were demurred to, and considering their sufficiency in the face of the demurrer, their averments can not be aided by implication or intendment. All such must be resolved against the pleader. Stewart v. Smith, *Page 123 16 Ala. App. 461, 463, 78 So. 724; Walker v. Alabama, Tennessee Northern Railway Co., 194 Ala. 360, 70 So. 125.

He further insists that by the averment in the replication that, if the alleged false representations were made in the application, they were not made in plaintiff's presence, the plaintiff assumed a greater burden than was necessary for him to assume. We are of different opinion. Said averments narrowed the issue to proof of false representations in plaintiff's presence, and put plaintiff in position where he could meet the averments of the pleas by his own testimony.

Application for rehearing overruled.

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