Commonwealth Life Ins. Co. v. Brandon

• Citation: 232 Ala. 265,167 So. 723
• Decision Date: 19 March 1936
• Docket Number: 6 Div. 913
• Parties: COMMONWEALTH LIFE INS. CO. v. BRANDON.
• Court: Supreme Court of Alabama

167 So. 723

232 Ala. 265

COMMONWEALTH LIFE INS. CO. v. BRANDON.

6 Div. 913

Supreme Court of Alabama

March 19, 1936

Rehearing Denied April 23, 1936

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Action on a policy of life insurance by Kate Harmon Brandon against the Commonwealth Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals under section 7326, Code 1923.

Reversed and remanded.

Huey Welch & Stone, of Bessemer, for appellant.

Moore &amp Green, of Bessemer, for appellee.

THOMAS Justice.

The suit was on a policy of life insurance.

Demurrer to the complaint was overruled. The complaint was in Code form (Code, § 9531, form 12), and was not subject to demurrer. American Bankers' Ins. Co. v. Dean, 227 Ala. 387, 150 So. 333; National Life & Accident Ins Co. v. Puckett, 217 Ala. 110, 115 So. 12; Sovereign Camp, W.O.W., v. Hubbard, 217 Ala. 431, 116 So. 163; National Life & Accident Ins. Co. v. Bridgeforth, 220 Ala. 314, 124 So. 886.

The law of the other features of this case was declared on first appeal. Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755. We adhere thereto.

The real question for decision is the right vel non of the defendant to the general affirmative instruction requested.

Pleas 1 and 2 were the general issue; plea 3 and others of like tenor are based on provisions of the policy, plea 3 reading as follows:

"3. The defendant for further plea and answer says that the plaintiff ought not to have and recover thereunder, for that by the terms of the policy herein sued on it is provided:

" 'No obligation is assumed under this policy prior to its date and delivery, nor, unless on said date of delivery the insured is alive and in sound health; nor if the insured has ever been rejected by this or any other company, nor if there is already in force in this company any previous policy unless the existence of such previous insurance is noted hereon by an endorsement signed by the Secretary or Assistant Secretary.'

"And the defendant further avers that said quoted provision was breached in that the insured was not in sound health on the date of the delivery of said policy herein sued on, for on said date the said insured was suffering from a serious disease or illness,

to-wit: Sarcoma, which said disease increased the risk of loss and the defendant hereby tenders the plaintiff the sum of $23.40, which said sum is the amount of premiums paid on said policy."

We made observation of this pleading on the first appeal, where the questions of fact presented were: (1) Whether the misrepresentations made to defendant were false; (2) if so, whether they were of material facts that increased the risk that affected, or calculated to affect, the conduct of defendant in the issue and delivery of the policy; or (3) whether by reason of the agreement of the parties the policy did not become effective by its delivery, under the terms we have set out above.

We have declared that such a condition precedent is in fact a warranty, and that it affected the coverage of the policy. Reliance Life Ins. Co. v. Sneed, 217 Ala. 669, 117 So. 307; Commonwealth Life Ins. Co. v. Harmon, 228 Ala. 377, 153 So. 755.

The assured made application for the policy of insurance declared upon on March 13, 1930, which application contained the following questions, answers, and declaration:

"16. When last sick July 10, 1929.

"17. Of what disease? Right leg amputated

"18. Name and address of Physician who last attended life proposed Dr. W.S. Roberts

"19. Has person now or ever had (If so give particulars) Asthma, Bronchitis, Disease of the Lungs, Consumption, Cancer, Spitting of Blood, Fits or Convulsions, Chronic Diarrhea, Disease of the Kidneys, Disease of the Liver, Disease of the Heart, Paralysis, Dropsy, Rupture, Dysentery, Rheumatism, Ulcers, Scrofula, Open Sores, Varicose Veins. No."

"The undersigned hereby declares and warrants that the representations and answers made above are strictly correct and wholly true; that they shall form the basis and become part of the Contract of Insurance (if one be issued); that any untrue answers will render the Policy null and void, and that said Contract shall not be binding upon the Company unless upon its date and delivery the insured be alive and in sound health." (Italics supplied.)

In November or December of 1928, the insured and plaintiff visited Dr. Ragsdale for examination of a growth on the leg of assured that was later amputated; an X-ray was made thereof; and on the advice of Ragsdale the insured then went to Dr. Roberts, who advised an operation to obtain a specimen of the tumor on that leg, the operation being performed in February, 1929, by Dr. Roberts. That operation consisted in making an incision on the outer side, exposing the tumor growing on the small or outer bone, and at that point about four inches of the bone were removed for further examination. Dr. Roberts was of the opinion that the insured had sarcoma, in that the tumor contained soft spots, which were evidence to him of a malignant tumor.

The specimen so removed was examined by Dr. Graham, a pathologist at the hospital, and as such pathologist Dr. Graham stated, after making a microscopic examination of the infected bone, that insured had sarcoma, thus confirming the diagnosis of Dr. Roberts. The latter was of the opinion that a recurrence thereof would appear in the leg or other parts of the body, testifying in this connection as follows: "After the first operation and after I had obtained this specimen I advised Mr. Harmon that it would probably be necessary for him to have a second operation, and probably not. I told him that it would probably be necessary. *** and after the first operation, and determined exactly what it was, the question of whether the second operation would become necessary came up, and at Mr. Harmon's suggestion, I accepted $75.00 at that time, sometime close around the first operation, I don't remember the date, whether he was still in the hospital or after; but sometime close to the first operation."

The second operation in July, 1929, showed an advanced state or growth of the tumor and no chance of recovery from this condition. Dr. Roberts stated: "After I saw him on the second operation in my opinion, I didn't think he would ever get well of that condition. The second operation was made merely to give him relief from the pain he was suffering from this malignant condition, for relief of pain. The second operation consisted of the amputation of the leg. The amputation was made just below the knee, about three and a half or four inches below the knee of the big bone, the entire small bone was taken out. The tumor in each instance was on the little bone; it had spread at the time of the second operation and it covered the whole leg." On further examination of the witness (Dr. Roberts) the record recites:

" 'State whether or not you have ever known of a person to get well of fibrosarcoma.'

"The plaintiff objected to said question on the ground that it is a repetition.

"The court sustained the objection.

"If a person had sarcoma in February 1929, and was operated on at the time in February, and was later on operated on in July of 1929 for the same sarcoma and the same tumor, and later, in July 1931, died of sarcoma of the lungs, in my opinion that would be the sarcoma or a metastasis from the sarcoma that the person had in February, 1921. I think the disease would have been with him from February 1929, up until the time he died in July 1931. There is no way to arrive at how malignant any cancer is or any sarcoma. I would say that the sarcoma we are dealing with here is just as malignant and just as bad as cancer of the liver, something you can't get at to treat, although cancer of the liver is curable in lots of cases."

Dr. Graham was qualified and testified as a pathologist, as follows: "I was the pathologist in the Birmingham Baptist Hospital in February 1929 and in July 1929. A tumor from the right fibula bone that had been taken from Mr. Harmon was referred to me for examination in February of that year. The tumor--I saw a tumor in the laboratory at the West End Hospital or Baptist Hospital shortly after it had been removed. Dr. Roberts had operated on the patient and had removed a piece of the fibula, that is, the bone on the outside of the leg. The piece of bone was 8.8 centimeters long; that is pretty nearly four inches long, involving that bone and right around that bone, and partly invading it--at any rate, indenting it, there was a tumor-mass 6 1/2 centimeters of 5 by 3; that is, between 2 1/2 and 3 inches long in its longest direction, and about two inches wide one way, and a little shorter back the other way. Dr. Roberts had described the tumor as being as big as a lemon. Well, that possibly is a fairly good idea of the size. The tumor was inspected. I have a long description of it here that would be unintelligible but to a physician. And then pieces of it were taken, and thin sections of them were made and studied under a microscope, and the diagnosis was rendered a fibrosarcoma."

On cross-examination Dr. Roberts was asked and answered, as follows:

"Now Dr. Roberts, immediately after Harmon was operated on, on the day of the operation and shortly after he was removed from the operating room on the day of the operation, in the presence of Mrs. Harmon here, there at the Birmingham Hospital, in Birmingham, if you didn't tell George Harmon, and make this statement to him, in her presence, in...