All States Life Ins. Co. v. Johnson

• Decision Date: 01 December 1939
• Docket Number: 4 Div. 80.
• Parties: ALL STATES LIFE INS. CO. v. JOHNSON.
• Court: Alabama Supreme Court

194 So. 877

239 Ala. 392

ALL STATES LIFE INS. CO. v. JOHNSON.

4 Div. 80.

Supreme Court of Alabama

December 1, 1939

Rehearing Denied Jan. 18, 1940.

Further Rehearing Denied April 4, 1940.

Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.

Suit by Corine Johnson against All States Life Insurance Company on life policy. From a judgment for plaintiff, the defendant appeals.

Reversed and remanded.

Mizell & Pearson, of Andalusia, for appellant.

E. O Baldwin, of Andalusia, for appellee.

FOSTER Justice.

This is an action on a life insurance policy. There are no pleas set out in the record. The judgment recites that issue was joined and a jury and verdict for plaintiff.

The charge of the court to the jury states that the defense is a claim that certain provisions of the policy in reference to the health of the insured were breached by misrepresentations in the application. The court then quoted from the policy in that respect; and also quoted section 8364, Code, as to the effect of misrepresentations in the negotiation of the contract of insurance; and quoted from the application the question "Have you ever had or been affected with cancer"?, and the answer to it of "No." The court then charged them as follows: "Well, before you could make a representation, gentlemen of the jury, as to a condition of your health in reference to cancer, of course the insured would not be charged with that representation unless he knew, or was negligent in failing to know, that he had the cancerous disease; because you can't charge a man with what he don't know anything about, unless there was negligence on his part in ascertaining he had that disease. So if the deceased in this case, gentlemen of the jury, the insured, made misrepresentation as to cancer, and he had no symptoms that could be disclosed, or that had been disclosed that would indicate that he had cancer, and he honestly believed at the time he didn't have cancer, and had no symptoms of cancer, the fact that he said he didn't have cancer would not void the provision of this policy, unless he knew it at the time or had reason to believe he had cancer at the time, or he was negligent in failing to find out about his condition, because it does increase the risk of loss. So that is the rule of law with reference to that disease, and that is a disease that is actually covered specifically by this application--that is, cancerous disease."

The court also charged the jury that another defense made by defendant was that he must have been in good health at the time the policy was delivered.

The bill of exceptions shows that plaintiff introduced the policy, which was dated June 5, 1937, and the application dated May 21, 1937, and proof of death, which occurred August 5, 1937.

There was much evidence as to whether deceased was affected with a cancer when he gave the application, and also when the policy was issued. No objection was made that this evidence was not relevant and the charge to the jury was out of place had it not been relevant. But the bill of exceptions does not contain the policy, nor does it set out the features of it which are alleged to have been breached. An effort has been made to get this corrected but to no avail.

The bill of exceptions does not show that exception was reserved to the quoted excerpt from the judge's charge, though it is so noted in the record proper. But that is not sufficient to review it. Solnick v. Ballard, 218 Ala. 206, 118 So. 381; Jiles v. State, 218 Ala. 658, 120 So. 147; National Surety Co. v. Boone, 227 Ala. 599, 151 So. 447. But the given and refused charges need not appear in the bill of exceptions, nor need an exception be noted. Section 6430, Code.

Refused charge B is as follows: "If you believe from the evidence in this case that the insured had cancer at the time the policy sued upon was delivered, irrespective of insured's knowledge of that condition, and his death resulted therefrom, then I charge that such was a breach of the warranty of said policy, and you cannot find for the plaintiff."

The substance of this charge had not been given in the general charge nor in special charges.

It is apparent from the court's oral charge that his interpretation of section 8364, Code, was that though the insured had a cancer at the time he made the application it would not avoid the policy unless there was a misrepresentation by insured in the application in that respect which he either knew was false or he had some symptoms which at the time were sufficient to disclose or indicate to him that he did have cancer at the time. The court stated that his interpretation of said statute was sustained by our case of Pacific Mutual Life Ins. Co. v. Edmonson, 235 Ala. 365, 179 So. 185.

But that case makes it plain, as do the words of the Code section, and many of our cases, that such a representation or warranty must be predicated upon one of two alternatives, either that material matter was misrepresented with actual intent to deceive, or that the matter be such as to increase the risk of loss. Our cases are cited in the opinion in Pacific Mutual Life Ins. Co. v. Edmonson, supra.

It is not essential that both alternatives concur. Sovereign Camp, W. O. W. v. Jackson, 233 Ala. 120, 170 So. 192; New York Life Ins. Co. v. Horton, 235 Ala. 626, 180 So. 277.

Our cases are to the effect that we judicially know that cancer increases the risk of loss. So that the refusal of charge B, copied above, is a misinterpretation of the statute.

It is noted that charge B refers to insured's condition at the time the policy was delivered. It is evident from the charge of the court that the application declared the health of insured must be good at the time the policy was delivered as well as when the application was made. This is sometimes done in another certificate signed by insured at the time the policy is delivered. Massachusetts Mut. Life Ins. Co. v. Crenshaw, 195 Ala. 263, 70 So. 768. Sometimes good health at the time of delivery is a term of the policy, and its acceptance is declared to be a warranty to that effect. Southern States Life Ins. Co. v. Dunckley, 226 Ala. 588, 148 So. 320. In either event, it is not necessary that there shall be both the actual intent to deceive and that the affliction of insured at the time shall increase the risk of loss. Either status will be a breach of the warranty or representation. Southern States Life Ins. Co. v. Dunckley, supra; Sovereign Camp, W. O. W. v. Rowe, 225 Ala. 336, 143 So. 171.

But the refusal of a charge which is abstract is not error to reversal, though the charge stated the law correctly.

It is insisted that the charge is not shown to be relevant in the absence of the policy or its features which make the principle applicable to this case. But section 6432, Code provides that the bill of exceptions shall state the point where the court is supposed to err (not necessary as to refused charges) "with such a statement of the facts as is...