Booker T. Washington Burial Ins. Co. v. Williams

• Decision Date: 16 March 1937
• Docket Number: 6 Div. 52
• Citation: 27 Ala.App. 393,173 So. 269
• Parties: BOOKER T. WASHINGTON BURIAL INS. CO. v. WILLIAMS.
• Court: Alabama Court of Appeals

173 So. 269

27 Ala.App. 393

BOOKER T. WASHINGTON BURIAL INS. CO. v. WILLIAMS.

6 Div. 52

Court of Appeals of Alabama

March 16, 1937

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action on a policy of burial insurance by Seasy Williams (also known as William Seasy) against the Booker T. Washington Burial Insurance Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

G.P Benton, of Fairfield, for appellant.

Wm. B McCollough and Hal W. Howard, both of Birmingham, for appellee.

SAMFORD Judge.

There are eight assignments of error, as noted in the transcript but according to the brief of appellant's counsel there are but two questions presented for review; the others not having been argued are waived. Ala. Midland Railway Co. v. McDonald, Admr., 112 Ala. 216, 20 So. 472.

It is first contended that the certificate of Dr. W.R. Ward, filed with the defendant at the time of proof of death, is conclusive evidence that the insured had a disease known as "pulmonary tuberculosis," at the time of the delivery of the policy. The policy in this case was issued by the defendant company on the 14th day of October, 1935, and provides: "In consideration of the payment of the weekly premium stated in the schedule below on or before each Monday in every week until the death of the insured, the Booker T. Washington Burial Insurance Company, Incorporated (hereinafter called the Company), agrees upon the receipt of satisfactory proof of the death of the insured and the surrender of this policy and premium receipt book or other evidence of the payment of premiums to pay the mortician named in the register on the back page hereof for furnishing a funeral and services for the insured, as provided herein to the retail value of the amount stated in the schedule below." (Which schedule in this case provides for a funeral of $125.)

Section 12 of the policy provides: "This policy shall be void if, before the date hereof, the insured has suffered Pulmonary Tuberculosis. ***" (Other diseases mentioned not necessary here to set out.)

The insured died on October 27, 1935, of which the defendant had due notice, and declined to furnish the $125 funeral on the ground that the policy was void; having been delivered at a time when the insured was suffering from pulmonary tuberculosis; this being the sole ground of objection, based upon the certificate of W.R. Ward, M.D., in which he states that his first visit to the insured was on October 24, 1935, that his last visit was on October 27, 1935, and that insured died on the last-named date of pulmonary tuberculosis, (duration) six months.

Pulmonary tuberculosis is a disease of which the courts take judicial knowledge as material to the risk of insurance. Brotherhood of Railway & S.S. Clerks v. Riggins, 214 Ala. 79, 107 So. 44; Independent Life Ins. Co. v. Seale, 219 Ala. 197, 121 So. 714. A clause in a life insurance policy, to the effect that no obligation is assumed by the insurer unless on the date of the delivery of the policy the insured is alive and in sound health, is in legal effect a warranty within the terms of section 8364 of the Code of 1923.

While it is the law that statements contained in a proof of loss, under a policy of life insurance, are to be taken as prima facie true as against the beneficiary, we cannot agree with the contention of appellant's counsel that the statement of the physician attending at the time of death can be taken as conclusive proof of the facts therein stated. Appellant's counsel argues very strongly on this point, but furnishes no authority. On the contrary, it was declared in Liberty Nat'l Life Ins. Co. v. Tellis, 226 Ala. 283, 146 So. 616; that the statements in the death certificate were prima facie true as against the beneficiary, and unless contradicted or avoided by competent evidence would be taken as conclusive evidence. Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755.

There was evidence in the instant case, furnished by the beneficiary and by witnesses who claim to have been familiar with the insured, that at the time of the delivery of the policy insured was in good health. These statements were relevant as evidence tending to prove that the defendant did not have tuberculosis at the...