Aetna Life Ins. Co. v. Norfleet

• Decision Date: 25 June 1936
• Docket Number: 6 Div. 942
• Citation: 169 So. 225,232 Ala. 599
• Parties: AETNA LIFE INS. CO. v. NORFLEET.
• Court: Alabama Supreme Court

169 So. 225

232 Ala. 599

AETNA LIFE INS. CO. v. NORFLEET.

6 Div. 942

Supreme Court of Alabama

June 25, 1936

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action on a policy of life insurance by Tressie Norfleet against the AEtna Life Insurance Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Taylor & Higgins, of Birmingham, for appellee.

ANDERSON Chief Justice.

While there was a conflict in the evidence between the defendant's agent Vaughn, and the plaintiff's witness, Mrs. Heck, as to what was said between the insured and said agent when the application was taken, and a good part of the appellee's brief is devoted to this phase of the case, the appellant does not rest its appeal on or insist upon the defense of a false statement by the insured in the procurement of the policy.

Quoting from appellant's brief: "We, therefore, stand or fall in this court upon the defense that the insured breached that stipulation in the policy that the policy would not take effect unless the insured was in good health upon the date of the payment of the first premium, in that Norfleet was afflicted with a disease, which this court will say, as a matter of law, materially increased the risk of loss on said date."

We have heretofore held that such a provision is enforceable as a warranty, and, if the breach related to such a condition of health as increased the risk of loss, it is fatal to recovery. Bankers' Credit Life Ins. Co. v. Ayres, 223 Ala. 407, 137 So. 23; Life Ins. Co. of Virginia v. Newell, 223 Ala. 401, 137 So. 16; Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755, and cases there cited. So the question is: Was the insured, at the time of the initial payment and delivery of the policy, suffering from a disease which increased the risk of loss? If he was, the warranty was breached whether he knew of the character or nature of the disease or not.

The evidence shows that shortly before this policy was issued, the insured was operated on in a hospital and had a testicle removed because of sarcoma (cancer); that on August 7, 1933, after the operation, the insured was examined by Dr. Meadows, who found that the sarcoma of the testicle had metastasized to the lung. After the operation in August, the insured returned to his work at the filling station, and while so engaged, and apparently in good health, he applied for the insurance September the 16th following, the policy being issued September the 23d and the premium was paid September the 26th. The insured died the following June. The proof also shows that death resulted from the sarcoma with which Norfleet, the insured, was afflicted at the time of the operation. The medical men also testified that such a sarcoma as the insured had was a very serious disease which would materially shorten a man's life and is incapable of cure. But, apart from this, we have heretofore held that cancer materially shortens a man's life. Miller v. Metropolitan Life Ins. Co., 214 Ala. 4, 106 So. 335.

We are therefore constrained to hold that insured, Norfleet, was suffering with a disease which materially increased the risk of loss when the policy was issued and...