American Nat. Ins. Co. v. Rosebrough

• Decision Date: 20 April 1922
• Docket Number: 7 Div. 299.
• Citation: 207 Ala. 538,93 So. 502
• Parties: AMERICAN NAT. INS. CO. v. ROSEBROUGH.
• Court: Alabama Supreme Court

93 So. 502

207 Ala. 538

AMERICAN NAT. INS. CO. v. ROSEBROUGH.

7 Div. 299.

Supreme Court of Alabama

April 20, 1922

Rehearing Denied May 18, 1922.

Appeal from Circuit Court, Calhoun County; S.W. Tate, Special Judge.

Action on policy of life insurance by Mrs. L. E. Rosebrough, as guardian, against the American National Insurance Company. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449,§ 6. Reversed and remanded.

Knox Acker, Sterne & Liles, for Anniston, for appellant.

Chas F. Douglas, of Anniston, for appellee.

MILLER J.

Mrs. L E. Rosebrough, as guardian of the estate of Clifford Rosebrough, sues the American National Insurance Company, a corporation, to recover the sum of $250 on a policy of life insurance issued by the defendant on the life of L. E Rosebrough. Said policy was payable to Clifford Rosebrough.

The defendant pleaded: First, general issue; second, that the application of decedent for the policy which was made part of it contained this statement made by him, that the present condition of his health was good, that the date of his last sickness was in June, 1918, and had not been treated by a physician since June, 1918; the illness then was malaria, and that he had no physical infirmity at that time-and defendant avers said statements in the application were untrue, they were known to applicant to be untrue, that they were made by him with the actual intent to deceive defendant, that defendant relied on said statements in issuing the policy, and that no medical examination for the issuance of that policy was required by the defendant; and defendant avers that the decedent was not in sound physical condition at that time, that he had been treated in May and June, 1919, by a physician for Bright's disease and diabetes, and was suffering from said ailments at the time the application was made, and died August 18, 1919, from said illness, of which he was suffering on the 2d of July, 1919, when the application of the policy was made.

Plea 3 was practically the same as plea 2, except it averred misrepresentations "were made with the actual intent to deceive and deceived the defendant into issuing the contract of insurance or increased the risk of loss." Plea 5 sets up the terms and conditions in the policy contract, which contains this provision:

"Provided, however, that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health."

It avers insured was alive on the date of the policy, but was not in sound health; that he was suffering at that time from Bright's disease from and on account of which he died on August 18, 1919; and this condition of his health was unknown to it, and hence defendant is not liable on said policy. Plea 6 is the same as plea 5, except the word "diabetes" is used in plea 6 where the words "Bright's disease" are used in plea 5.

Each of the pleas 2, 3, 5, and 6 contain averments that, after discovering insured was afflicted as above stated, defendant tendered to plaintiff's attorney the premiums paid by insured, and it was refused, and it [defendant] now tenders into court said sum, together with all costs and interest. There was a verdict by the jury in favor of plaintiff for $262.43, judgment thereon by the court, and defendant appeals.

The court did not err in sustaining objections of plaintiff to questions propounded by defendant to its witness Dr. Van Zandt as to whether or not the physical condition of insured on July 14, 1919, when the policy was issued, increased the risk of loss or probable loss on the life insurance policy. The questions called for a conclusion. They called for a conclusion on a matter directly in issue. The witness should state the facts-state the physical condition of insured at the time, the disease, if any, and its effect on the body-and let the jury decide whether or not the physical condition of the decedent at the time, as shown by the facts, increased the risk of loss on the policy. Weller & Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L. R. A. (N. S.) 1106.

Mrs. Rosebrough, wife of insured, and the plaintiff, testified:

"I talked with Dr. Van Zandt about it. All I asked Dr. Van Zandt was when he brought him (insured) a little vial of medicine one day in passing. Mr. Rosebrough's mother died with Bright's disease, and I asked him if my husband had symptoms of Bright's disease, and he said he did not, that he would have him all right in a few days."

Dr. Van Zandt testified:

He did not remember whether he took the bottle of medicine down there to the house; but he testified that between May 4 and June 29, 1919, while he was treating the insured for Bright's disease, he told her (plaintiff) "His kidneys were in bad shape, and that I could not do any more for him. *** I did not tell her that Mr. Rosebrough was getting along fine, and that this bottle of medicine would soon have him all right; I am positive of that and know that I did not tell her that."

He also testified that the insured had Bright's disease, and he treated him for it from May 1 until the last of June, 1919.

The court did not err in permitting Stella Rosebrough to testify that her mother asked Dr. Van Zandt at their house when he brought a bottle of medicine for her father if the insured had any symptoms of Bright's disease, and the doctor replied that "he did not have any symptoms of Bright's disease," and left a vial of medicine there. No ground was stated by the defendant to his objection to the question. It was the same conversation testified about by Mrs. Rosebrough. The question called for evidence that tended to impeach the testimony of Dr. Van Zandt, who was a witness for defendant, about a matter material to the issue by showing that he made statements to them (Mrs. Rosebrough and her daughter) contrary to his testimony in court. A predicate was laid with the witness and Mrs. Rosebrough for such testimony. The testimony of this witness tended to contradict Dr. Van Zandt, and to corroborate Mrs. Rosebrough. The question called for relevant and competent evidence. The court properly overruled the objection to it. Brown v. State, 79 Ala. 61; People's Shoe Co. v. Skally, 196 Ala. 349, 71 So. 719; 1 Mayf. Dig. p. 888 (c), Impeaching or Discrediting Witness by Contradictory Statements, § 1.

The court did not err in allowing a witness to testify whether during the months of May, June, and July, 1919, the year the insured died, he (insured) would move around quickly, glibly or sluggishly, and whether his getting up at night to urinate was what it had been for a number of years preceding that time. There was evidence that slow, sluggish movements of a person and frequent urination are some of the symptoms...