Commonwealth Life Ins. Co. v. Harmon

• Decision Date: 22 March 1934
• Docket Number: 6 Div. 528.
• Citation: 228 Ala. 377,153 So. 755
• Parties: COMMONWEALTH LIFE INS. CO. v. HARMON.
• Court: Alabama Supreme Court

153 So. 755

228 Ala. 377

COMMONWEALTH LIFE INS. CO. v. HARMON.

6 Div. 528.

Supreme Court of Alabama

March 22, 1934

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action on a policy of life insurance by Katie Harmon against the Commonwealth Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Reversed and remanded.

Huey Welch & Stone, of Bessemer, for appellant.

Moore &amp Green, of Bessemer, for appellee.

THOMAS Justice.

The plaintiff declared on a policy of life insurance and employed the Code form. Section 9531, form 12, Code 1923.

There were the pleas of the general issue; pleas 3 and 4 setting up provisions of the policy alleged to be breached in that the insured was not in sound health on the date of the delivery of said policy, but was affected with a serious disease which was material to and increased the risk of loss, and warranties that were untrue, and pleas 5, 6, and 9 based on representations contained in the policy, as that of sound health, alleged as untrue, material to the risk, made with actual intent to deceive, and that defendant was deceived thereby and induced the issue and delivery of the policy. Plea 7 is based on alleged misrepresentations in the application for insurance as to when last sick, of what disease, and the name and address of the physician who last attended him, withheld the fact that the right leg was amputated on the date indicated by the doctor named because he was suffering from a serious disease, sarcoma, which was material to the risk, and withheld with actual intent to deceive and induce the issue of the policy, and defendant was so induced to issue the policy. In pleas 8 and 9, the alleged misrepresentations were contained in the questions and answers in the application that embraced sarcoma and that he did not have same, alleging that he was so afflicted; that the fact was material to the risk, made with actual intent to deceive, and to induce and did induce the issue of the policy by reason of such deception. The plaintiff joined issue on the pleas.

It is established that a provision in a life insurance policy that "no obligation is assumed under" the policy "prior to its date and delivery nor unless on said date of delivery the insured is alive and in sound health" is a reasonable and valid limitation of the contract. Such clauses have been construed as enforceable as a warranty, or of that effect, if at the time of the issue and delivery of the policy the insured is (1) afflicted with a disease that increased the risk of loss; or (2) there is a misrepresentation made with the actual intent to deceive, and which relates to a material fact, as materially increasing the risk of loss. Such breach of warranty or vitiating misrepresentation will defeat the policy so issued and delivered if the insurer relied on them. Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192, 146 So. 524; Metropolitan Life Ins. Co. v. Usher, 226 Ala. 314 146 So. 809; Bankers' Credit Life Ins. Co. v. Ayres, 223 Ala. 407, 137 So. 23; Heralds of Liberty v. Collins, 216 Ala. 1, 110 So. 283; Southern Life & Health Ins. Co. v. Morgan, 216 Ala. 529, 113 So. 540; North Carolina Mut. Life Ins. Co. v. Kerley, 215 Ala. 100, 109 So. 755; Brotherhood of Railway & Steamship Clerks, etc., v. Riggins, 214 Ala. 79, 107 So. 44; Miller v. Metropolitan Life Ins. Co., 214 Ala. 4, 106 So. 335; Empire Life Insurance Co. v. Gee, 171 Ala. 435, 55 So. 166; New York Life Ins. Co. v. McJunkin, 227 Ala. 228, 149 So. 663.

It is further declared 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, and, unless avoided by competent evidence, are conclusive of the issue on that trial. Liberty Nat. Life Ins. Co. v. Tellis, 226 Ala. 283, 146 So. 616, and authorities collected; National Life & Accident Ins. Co. v. Puckett, 217 Ala. 110, 115 So. 12; Cotton States Life Ins. Co. v. Crozier, 216 Ala. 537, 113 So. 615; New York Life Ins. Co. v. Turner, 210 Ala. 197, 97 So. 687.

The primary question of fact presented is: Was the assured in good health when he made application and the policy was issued and delivered thereon? The physician testified without dispute that the insured had a disease of fibrosarcoma in 1929, had been operated on for that disease or infection before the issue and delivery of the policy, and that the doctors so operating and making the physical examinations were of the opinion that it was a fatal malady of which the assured was not informed and not cured, and that he died of such disease; that is to say, it is without dispute that the physicians who had actual knowledge of the facts were of the opinion, as medical men, and so stated as witnesses, that assured had the fatal disease (of which he died) at the time the policy was issued and delivered. It is further in evidence that the disease in question was incurable, materially affected the risk, and shortened assured's life. The evidence for plaintiff showed that assured, members of his family, and others were of the bona fide belief that the operations had been successful and that he was in good health when the application was made and the policy was delivered.

The questions recur upon the pleas of the defendant: (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. That agreement was: "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 for insurance 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." (Italics supplied.) Such a condition precedent is in fact a warranty. Reliance Life Ins. Co. v. Sneed, 217 Ala. 669, 117 So. 307.

The statement in the "agent's inspection report," that the leg was amputated because of injury, was false, and it must be conceded that defendant was not informed in the application signed by the assured, that the cause of the amputation was, as stated by the attending physicians, because of fibrosarcoma, a disease which materially affected the risk. Metropolitan Life Ins. Co. v. Dixon, 226 Ala. 603, 148 So. 121; Brotherhood of Railway & Steamship Clerks, etc., v. Riggins, supra; Reliance Life Ins. Co. v. Sneed, supra.

In Liberty Nat. Life Ins. Co. v. Tellis, 226 Ala. 283, 146 So. 616, it was declared 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. Here the beneficiary made no specific answer of the cause of death, but referred the cause to the physician. Miller v. Metropolitan Life Ins. Co., 214 Ala. 4, 106 So. 335; Life Ins. Co. of Virginia v. Newell, 223 Ala. 401, 137 So. 16.

There are tendencies of evidence for plaintiff that after the operations the assured appeared to be in sound health, and such was his appearance at the time of the application and delivery of the policy, that he had assurances of the success of his operations, and that he continuously pursued his occupation requiring hard labor, which were properly before the jury on the questions of fact made by the defendant's pleas. Sovereign Camp, W. O. W., v. Brock, 226 Ala. 579, 148 So. 129.

The general rules stated by the decisions of this court as to the effect of expert testimony are: "The judgments of experts or the inferences of skilled witnesses, even when unanimous and uncontroverted (Sellers v. Knight, 185 Ala. 96, 64 So. 329), are not necessarily conclusive on the jury (Curjel v. Hallett Mfg. Co. , 73 So. 938; Tyson v. Thompson, 195 Ala. 230, 70 So. 649; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Andrews v. Frierson, 144 Ala. 470, 39 So. 512; Blalack v. Blacksher, 11 Ala. App. 545, 66 So. 863; Cleveland v. Wheeler, 8 Ala. App. 645, 62 So. 309), but may be disregarded by it or by the court trying an issue of fact (Citizens' Light, etc., Co. v. Illinois Central Trust Co. , 75 So. 330), unless the subject is one for experts or skilled witnesses alone, and the jury cannot properly be assumed to have, or be able to form, correct opinions of their own, under which circumstances the unanimous evidence of properly qualified witnesses has been regarded by some courts as conclusive (Harris v. Nashville, etc., R. Co., 153 Ala. 139, 44 So. 962, 14 L. R. A. (N. S.) 261). Conversely expert testimony can never be regarded as legally necessary to sustain a jury's inference from proved basic facts." 22 Corpus Juris, pp. 729, 730, 731, § 823.

The rule as to the conclusiveness of evidence by the opinion of an expert was recently stated in Atlantic Coast Line R. Co. v. Jackson, 225 Ala. 652, 655, 144 So. 813, 815, as follows:

"With respect to refused charge A, we note that it makes the

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