National Life & Acc. Ins. Co. v. Curtin

• Decision Date: 25 February 1947
• Docket Number: 7 Div. 873.
• Citation: 29 So.2d 577,33 Ala.App. 50
• Court: Alabama Court of Appeals
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. CURTIN.

29 So.2d 577

33 Ala.App. 50

NATIONAL LIFE & ACCIDENT INS. CO. v. CURTIN.

7 Div. 873.

Alabama Court of Appeals

February 25, 1947

Application for Rehearing Stricken March 18, 1947.

L. B. Rainey, of Gadsden, for appellant.

Rains & Rains, of Gadsden, for appellee.

HARWOOD Judge.

This is an appeal from a judgment below entered against appellant company in a suit on a non-participating industrial policy of life insurance on the life of Minnie Lee Curtin, wife of the appellee. The policy was issued November 4, 1940, and the insured died on December 28, 1941. Frank Curtin, husband of the insured, and the appellee in this case was named as beneficiary. The case was tried before the court without a jury.

No plea was filed, but it is apparent from the evidence introduced that the case was tried on the theory that the insured was not in sound health due to high blood pressure, on the day of the issuance of the policy, which contained a stipulation that no obligation was assumed by the company if the insured was not in sound health on the date of the policy.

Parties in a suit at law may by acquiescence or the introduction of evidence waive formal pleading, and form their own issues on the evidence introduced. Miller v Bryant, 25 Ala.App. 564, 151 So. 362, certiorari denied 227 Ala. 570, 151 So. 366; Manufacturers Finance Acceptance Corporation v. Autrey, 228 Ala. 149, 153 So 181.

Only two assignments of error are insisted upon and argued by appellant's counsel in his brief, and we confine our opinion to such assignments. Supreme Court Rule No. 10, Code 1940, Tit. 7 Appendix; New York Life Insurance Co. v. Mason, 236 Ala. 44, 180 So. 775; Louisville & Nashville R. Co. v. Holland, 173 Ala. 675, 55 So. 1001.

The first is that the court erred in receiving in evidence a card signed by Dr. Burt McCord on October 23, 1940 certifying that to the best of his knowledge and belief, Mrs. Frank Curtin, of Gadsden, Ala., was on that date in a state of normal good health, but that under the meaning of said statement if the applicant was suffering from pregnancy, infectious disease, hypertension, cancer or any physical ailment, which in the opinion of the physician, makes the applicant a greater than average Insurance Risk, the applicant is judged to be not in a state of normal good health.

This certificate was addressed to the Gulf States Steel Company Y. M. C. A., and was labeled a Family Protective Insurance Health Certificate.

Mr. Frank Curtin, husband of the insured, had before the introduction of the above card testified that the insured had, a few days before Dr. McCord's examination, applied for the policy herein sued for, and as examining physician for appellant company Dr. McCord visited insured's home and examined her in connection with her application for insurance with appellant company and at the same time examined her for the Gulf States Steel Y. M. C. A. Family Protective Insurance. After completion of his examination he gave Mrs. Curtin the above described card.

Appellant's counsel argues here that the above card was inadmissible because it was not addressed to the appellant company, and also because it was made out for Mrs. Frank Curtin, and not to Minnie Lee Curtin.

We think it is clearly inferable from the testimony of Mr. Curtin, husband of the insured, that Mrs. Frank Curtin, mentioned in the certificate, and Minnie Lee Curtin were one and the same person.

Since Dr. McCord was the physician designated by the appellant to examine Mrs. Curtin, and since only one examination was made by Dr. McCord, though in connection with both the policy issued by appellant, and also the Gulf States Steel Y. M. C. A. policy, the relevancy of Dr. McCord's report of this examination made to the Gulf States Steel Y. M. C. A. is in our opinion obvious, and such card report was correctly admitted by the court.

It might be noted that after the appellant, defendant below, had introduced in evidence in the trial below, the application of the deceased for the policy on which this suit is based, the appellant then offered in evidence, and same was received in evidence without objection, the medical examiner's report made by Dr. McCord in connection therewith, this report appearing on the opposite side of the exhibit offered by the defendant below. In this medical report, bearing the same date as the Gulf States Steel Y. M. C. A. card, Dr. McCord certified that he had on October 23, 1940 examined Minnie Lee Curtin, and that she appeared in good health; that there was no physical defect or infirmity, and that he did not detect any disease of any kind.

The second assignment of error argued by the appellant is that the court erred in denying his motion to set aside the judgment rendered because of newly discovered evidence.

This alleged newly discovered evidence was brought to appellant's attention when Dr. Grimes, a witness for the appellant, testified that at the time he treated Mrs. Curtin in 1939 she was suffering from high blood pressure, and that outside of high blood pressure she was in good condition. Dr. Grimes said that Mrs. Curtin had one or two other doctors treat her during this same time, and named Dr. Finney as being one of the other doctors.

The appellant did not move for a continuance, nor otherwise take any move toward securing the testimony of Dr. Finney.

The grounds of the motion of appellant to set aside the verdict because of newly discovered evidence were as follows:

'For that the defendant discovered new testimony during the trial of the cause of which defendant had no prior knowledge, was not available to the defendant during the trial nor previous thereto, and defendant avers that it was diligent in its efforts to obtain all the evidence in its behalf; that the newly discovered testimony is material to the defendant in the trial of this case, and is, and was obtained, as follows viz:...