Accident Indem. Ins. Co. v. Feely

• Decision Date: 06 January 1966
• Docket Number: 1 Div. 321
• Parties: ACCIDENT INDEMNITY INSURANCE COMPANY v. Patrick FEELY.
• Court: Alabama Supreme Court

Page 889

181 So.2d 889

279 Ala. 74

ACCIDENT INDEMNITY INSURANCE COMPANY v. Patrick FEELY.

1 Div. 321.

Supreme Court of Alabama.

Jan. 6, 1966.

Kenneth Cooper, Bay Minette, for appellant.

Wilters, Brantley & Nesbit, Robertsdale, for appellee.

MERRILL, Justice.

This is an appeal from a judgment in favor of appellee for $3,150 in a suit on an insurance policy whereby appellee was to be paid if he should become totally and permanently disabled. A motion for a new trial was overruled.

Appellee's complaint was in four counts and appellant pleaded the general issue and special pleas that the allegations in the complaint were untrue; that appellee's warranty that he was in good health was untrue; that he knowingly and willfully misrepresented his state of health to be good when he knew that he had a heart disease; that he falsely represented that he had had no surgical treatment within five years prior to the issuance of the policy; that he misrepresented with intent to deceive in the negotiation of the contract; that he falsely stated that he had no disease of the heart and that he had had no other medical advice or treatment during the five-year period prior to the issuance of the policy, and these misrepresentations increased the risk of loss.

The application for insurance was signed by appellee on January 2, 1963, when he was 57 years of age. In it, he stated that he had had no medical or surgical advice or treatment in the preceding five years, and that he had never had any disease of the heart.

It is undisputed that he had received medical attention in the five preceding years but the main question of fact was whether he had a history of heart trouble. This was important because appellee did have a heart attack on February 12, 1963, less than two months after applying for the insurance.

Appellee testified that he had chest pains at age 39 but, after having his tonsils removed and he quit smoking, the pain 'went away' but returned the previous three or four years when he started smoking again. The specialist to whom appellee was referred after his heart attack testified that appellee told him that he had had angina since he was 39 years of age, but appellee denied this and there was other evidence that appellee's trouble was not diagnosed as coronary insufficiency with angina pectoris until after his heart attack in February, 1963. Appellee's attending physician, who had treated him for many small ailments, testified that he never suspected that appellee might have heart trouble prior to February 12, 1963, and that the ailment could 'come on a person with a snap of the finger.' A jury question was made on the question of the heart disease and this presumably was resolved in favor of the appellee.

All the evidence surrounding the taking of the application was given by appellee. He said the agent asked him some questions and the agent put down the answers. He said he told the agent that he had had arthritis and had gone to the doctor every month or two, but the agent told him if it had not been within the past two years, 'I won't even put it in the application.' When the agent finished writing on the application, he handed it to appellee, who said that he glanced at it and signed his name to it. Appellee testified that he never had any idea that he had heart trouble until the doctor told him in February, 1963.

Appellant has listed twenty-four assignments of error and has argued all of them.

Appellee contends that appellant has argued groups of assignments of error together and proceeds to show where one in the group is without merit; and, since they are unrelated, insists that we should not consider any of them. We cannot agree because each assignment of error is listed separately in brief but, in several instances, the same argument is adopted for a listed assignment as was used for a prior assignment of error. This is permissible, especially in view of amended Supreme Court Rule 8, which limits the number of pages in briefs. If the same argument can be used for two unrelated assignments of error, there is no need to repeat the argument just because the two assignments should not have been argued together.

Assignment of error 1 charges that the court erred in overruling the motion for a new trial because the appellee had not proved his case. But appellee showed that a policy, in force at the time, had been issued to him by appellant; that he was totally disabled to work; that appellant had notice of the claim and that appellant had refused to pay the claim. This made out a prima facie case, and the assignment of error is without merit.

Assignment 3 reads: 'The verdict of the jury is not supported by the evidence in the case.' This assignment of error is not sufficient. Vickers v. Vickers, 273 Ala. 645, 144 So.2d 8; Life & Casualty Ins. Co. of Tennessee v. Womack, 228 Ala. 70, 151 So. 880.

Assignments of error 4, 5, 6, 8, 9, 10 and 11 are without merit because they point out evidence favorable to appellant and contend that the verdict and judgment were not supported because of such evidence. But there was conflicting evidence, and the credibility of conflicting testimony of for the jury. Phillips v. Long, 266 Ala. 621, 97 So.2d 795; Self v....