Brown-Service Ins. Co. v. Wright

• Decision Date: 17 December 1946
• Docket Number: 4 Div. 957.
• Citation: Brown-Service Ins. Co. v. Wright, 32 Ala.App. 578, 28 So.2d 318 (Ala. App. 1946)
• Parties: BROWN-SERVICE INS. CO. v. WRIGHT.
• Court: Alabama Court of Appeals

28 So.2d 318

32 Ala.App. 578

BROWN-SERVICE INS. CO. v. WRIGHT.

4 Div. 957.

Alabama Court of Appeals

December 17, 1946

Appeal from Circuit Court, Tuscaloosa County; W. C. Warren Judge.

Ball & Ball, of Montgomery, for appellant.

Lawrence K. Andrews, of Union Springs, for appellee.

HARWOOD Judge.

Mrs Mattie Wright, as beneficiary of an insurance policy issued by the Brown-Service Insurance Company on the life of Herman J. Hough, her brother, sued the said company for the amount of the policy, i.e., five hundred dollars.

The complaint was in code form. The defendant's plea set up that the policy contained the following provisions:

'Limitation of Insurance: * * * The liability of the company shall be limited to the return of the premiums paid on the policy if (1) * * * at the date hereof the insured is not alive and in sound health * * *.' The plea further alleged that the policy was issued on 7 June 1943, and that within two years the assured died as a result of stricture of the urethra from which he was suffering prior to the issuance of the policy, which increased the risk of loss under the policy, and that the premiums paid were $65, which were tendered and paid into court.

Issue was reached on the plea. The case was tried before a jury which returned a verdict in favor of the plaintiff and the court entered its judgment pursuant thereto. The defendant below perfected its appeal to this court.

Mrs. Wright, the plaintiff below, and beneficiary under the policy testified that she was the sister of the insured, Herman J. Hough, and that he had no wife or children; that the insured died on 4 April 1945; and that she was the owner of and beneficiary of a policy issued on said Herman J. Hough by the defendant company which had been duly notified of the insured's death.

Mrs. Wright identified the above mentioned policy which was received in evidence as an exhibit.

The plaintiff thereupon rested.

The defendant's evidence consisted of a certified copy of the death certificate pertaining to Herman J. Hough, and of the testimony of Dr. T. B. Hubbard, a practicing physician of Montgomery.

Dr. Hubbard testified by deposition that he attended the insured in February, 1945. That he was in miserable shape generally and obviously very ill. At that time the insured had two big tubes protruding from an opening in the lower part of his abdomen from which was draining pus and urine. In addition he had a perineal sinus, or opening through which urine drained. The anterior portion of insured's urethra was practically obliterated by strictures. The sinus had the appearance of having been there a long time, and while he, Dr. Hubbard, could not say definitely how many years, according to the history given to him by the insured he had had this condition several years, 'and had been voiding through this thing for years.' Dr. Hubbard testified that this condition increased the risk to insured's health and the danger of his dying.

The insured left Dr. Hubbard's hospital on 12 March, 1945, but returned on 16 March 1945. A perineal urethrotomy operation was performed on 19 March 1945 with the idea that such operation would furnish a drain for the bladder. The patient never got any better practically, and died on 4 April 1945.

The certified copy of the death certificate covering insured, and executed by Dr. Hubbard, was received in evidence. The portions of said certificate, material to this case were those showing:

'Immediate cause of death--stricture of urethra. Duration 10 years.'

A stipulation signed by the attorneys for the respective parties to the suit showing that the premiums paid on said policy amounted to $65 was received in evidence. The defendant then rested.

In rebuttal the plaintiff below called as a witness Dr. W. Hill McCaslan. Dr. McCaslan testified that he was a practicing physician of Union Springs. He was called to see Mr. Hough on 5 February 1945 and found him suffering from an acute occlusion of the urethra with retention of the urine. He treated him that night and the next day Mr. Hough was sent to the Veteran's Hospital in Montgomery. Dr. McCaslan testified he did not know whether Mr. Hough had had a stricture of the urethra previous to the occasion on 5 February 1945 when he was called as he had never been consulted prior to that time. Dr. McCaslan further testified that a stricture of the urethra...