Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees v. Riggins

• Citation: 21 Ala.App. 249,107 So. 43
• Decision Date: 30 June 1925
• Docket Number: 6 Div. 712
• Court: Alabama Court of Appeals
• Parties: BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES v. RIGGINS.

107 So. 43

21 Ala.App. 249

BROTHERHOOD OF RAILWAY & STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS & STATION EMPLOYEES v. RIGGINS.

6 Div. 712

Court of Appeals of Alabama

June 30, 1925

Rehearing Denied Aug. 4, 1925

Reversed on Mandate Feb. 2, 1926

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action on a policy of life insurance by Blanton Riggins against the Brotherhood of Railway & Steamship Clerks, Freight Handlers Express & Station Employees. From a judgment for plaintiff defendant appeals. Reversed on mandate.

Certiorari granted by Supreme Court in Brotherhood, etc., v Riggins, 107 So. 44.

Nesbit & Sadler, of Birmingham, for appellant.

Arlie Barber, of Birmingham, for appellee.

RICE J.

This appeal is from the judgment in a suit upon a policy of life insurance issued to Roy Hobart Riggins, and payable to Blanton Riggins, his father, the plaintiff, in the court below.

The insured died December 31, 1923, while suffering from pneumonia and tuberculosis of the spine. The evidence is confused as to which disease was the primary cause of his death. The attending physician first reported to the appellant that the tuberculosis of the spine was the primary cause and later reported that the pneumonia was the primary cause. In each report he named the other disease as being the secondary cause.

It was shown without dispute that for a long time prior to the date of the application for the insurance the deceased was suffering from tuberculosis of the spine, and had been under treatment for that disease, and that such affliction was a disease which adversely affected a person as an insurance risk. It was likewise shown that from his birth the insured had curvature of the spine or what is called a "hunchback," and that this condition was very pronounced and very noticeable; also that "to a professional man curvature of the spine indicates tuberculosis of the spine"; too that, for a great number of years, insured rarely, if ever, lost a day from his work on account of sickness, that he worked right up to the third day before his death, apparently in his usual condition of health.

In his application for the policy here sued on, made on October 7 1922, insured, in answer to the question, "What is the present condition of your health?" answered, "General health good."

It should be noted that the appellant is a fraternal organization, of which the insured was, at the time of making the application, issuance of the policy, and his death, a member in good standing, and that his signature to the policy of insurance mentioned, was witnessed by the president of the local lodge to which he belonged.

Appellant in prosecuting this appeal from the judgment rendered against it, assigns but a single error, the refusal of the trial court to give in its behalf the general affirmative charge; the contention being that insured's statement in his application that his general health was good, under the circumstances, constituted...