Alabama Gold Life Ins. Co. v. Mobile Mut. Ins. Co.

• Decision Date: 15 February 1887
• Citation: 81 Ala. 329,1 So. 561
• Parties: ALABAMA GOLD LIFE INS. CO. v. MOBILE MUT. INS. CO.
• Court: Alabama Supreme Court

1 So. 561

81 Ala. 329

ALABAMA GOLD LIFE INS. CO. v. MOBILE MUT. INS. CO.

Supreme Court of Alabama

February 15, 1887

Appeal from city court of Mobile.

Action on policy of life insurance.

Action brought by Mobile Mutual Insurance Company, respondent against Alabama Gold Life Insurance Company, appellant, to recover on a life insurance policy.

Overall & Bestor, for appellant.

R H. Clarke, contra.

CLOPTON J.

The Alabama Gold Life Insurance Company issued, February 14 1871, a policy of insurance, in the sum of $5,000, on the life of James L. Steedman, payable to the assured or his legal representatives. On July 18, 1882, Steedman assigned the policy to Charles A. Holt, who was his creditor. The company, on request of Steedman and Holt, issued July 23, 1883, in consideration of the surrender of this policy, a paid-up policy, being the one sued on, payable to Holt, "assignee, his executors, administrators, or assigns." The latter policy was assigned by Holt, during the life of the insured, to appellant, who brought the present suit; Steedman having died March 4, 1884. The defendant pleaded the general issue, and a special plea alleging misrepresentation as to age and date of birth. The only error assigned is the refusal of the court to give, on request in writing, the affirmative charge in favor of the defendant. The right to such charge is based on two grounds,-the absence of conflict in the testimony respecting age and date of birth, and the want of evidence showing an insurable interest.

If the only ground on which to rest the instruction was the effect of the evidence relating to the issue of misrepresentation, there would be no error in its refusal. Such charge may be properly given when the evidence is clear and positive, without conflict on any material point, and no evidence is offered by the other party affecting its credibility or accuracy. The mere want of conflict is not sufficient, unless only legal conclusions can be drawn. The affirmative instruction should not be given, though the evidence may be without conflict, and direct and positive, if it rests in inference; and the jury are authorized to make any deduction, or draw any inference, which would be fatal to the right of recovery, or to the defense, as the case may be. Luke v. Calhoun Co., 52 Ala. 115; Fountain v. Ware, 56 Ala. 558. The only witness who testified directly to the time of birth was Reuben Steedman, the father of the insured. His testimony was taken on interrogatories, to which was attached his ex parte affidavit procured by the defendant shortly after the death of the insured, on the face of which it is apparent an alteration had been made in the figures designating the year of birth, and no explanation was offered how, when, or by whom the alteration was made. Though his testimony is positive and direct, there is evidence that he was advanced in years, was infirm, and his memory was bad, and that no record was kept of the births of his 10 children. The statement of the date of birth in the proof of death may be regarded as an admission, subject to be corrected or explained. Connecticut Life Ins. Co. v. Schwenk, 94 U.S. 593. Clover, who made the proof, testified to his want of information, the manner in which he arrived at the year of birth, and that it was inserted in the proof on demand of the agent of the defendant, to whom he stated, at the time, he did not know the date of birth. The burden of proving the falsity of the representation is on the defendant. Piedmont & Arlington Life Ins. Co. v. Ewing, 92 U.S. 377. The credibility and accuracy of the testimony, and its sufficiency, are matters for the determination of the jury. In determining these questions, they were authorized to consider the evidence relating to the physical and mental condition of the witness at the time of testifying, and the circumstances under which he testified, and the explanation of the admission in the proof of death, and draw inferences in regard to the value and accuracy of the direct and positive evidence. The effect of the charge would have been to withhold from their consideration the explanatory, qualifying, and invalidating evidence, and to instruct them that, notwithstanding its truth, the testimony of the father and the admission in the proof of death were sufficient to overcome the presumption of the truth of the representation.

But such charge should be given when there is a want of evidence tending to prove a fact material to the right of recovery. Tyree v. Lyon, 67 Ala. 1. There is no evidence of an insurable interest; and the question thus raised is whether it is incumbent on the assignee of a policy of life insurance, the assignment having been made during the life of the insured, to show such interest to entitle him to recover. The doctrine is well settled that a policy of insurance taken out by one person on the life of another, in which he has no insurable interest, is repugnant to public policy, and illegal; and, though there is conflict in the authorities, it may be regarded as established by this court that the assignment of a policy of life insurance to one having no expectation of benefit or advantage from the continuance of the life of the insured, founded on relations of blood or marriage or pecuniary,-to one who is interested in his death, rather than his life,-is obnoxious to all the objections which exist to the issue of the policy originally to such person. Helmetag v. Miller, 76 Ala. 183.

The policy sued on contemplates and provides in terms for an assignment. It is made payable to the assured, his executors administrators, or assigns. After prescribing the mode in which it may be...