Cotton States Life Ins. Co. v. Crozier

• Decision Date: 30 June 1927
• Docket Number: 7 Div. 730
• Citation: 216 Ala. 537,113 So. 615
• Parties: COTTON STATES LIFE INS. CO. v. CROZIER.
• Court: Alabama Supreme Court

113 So. 615

216 Ala. 537

COTTON STATES LIFE INS. CO. v. CROZIER.

7 Div. 730

Supreme Court of Alabama

June 30, 1927

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Action by Lula Crozier against the Cotton States Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Death certificate was evidence only of compliance with requirements of policy.

This action is brought by plaintiff as beneficiary under a policy insuring the life of her adopted mother, Dillie Smith. The policy was issued on September 21, 1925, and the insured died on February 16, 1926.

The policy contains this provision following the insurance clause:

"Provided, however, that no obligation is assumed by this company prior to the date and delivery of this policy nor unless at the time of said delivery the insured is alive and in sound health."

Plea 2 sets up this provision of the policy, and "avers that at the time the policy was delivered the insured was not in sound health, but was afflicted with a serious disease of the heart." A demurrer was sustained to this plea, the grounds of which were as follows:

"(1) Said plea 2 makes no answer to the complaint, in that it fails to state when it delivered said policy, or does it aver when or whether it ever delivered said policy.

"(2) For aught that appears in said plea, the defendant was on her deathbed at the time of the delivery of said policy, and that the defendant had taken and accepted many premiums on its said contract.

"(3) For aught that appears in said plea, the defendant wrongfully or fraudulently withheld said policy from the plaintiff in order to take advantage of its own wrong.

"(4) For that said plea 2 fails to answer said complaint or to show any legal reason for not paying the amount due under the terms of the policy to the deceased's beneficiary."

Plea 4 is as follows:

"For further answer to the complaint the defendant says that the insured made a written application to it for the issuance of said policy, and in said application she stated that she was in sound health, and the defendant avers that at this time she made and signed said application, she was not in sound health, in this, that the insured was then suffering from, and afflicted with, heart disease, and that she knew she was suffering from said disease, and was not in sound health and safely insurable, and that said answer was false, and said insured knew it was false, and it was made by her with intent to deceive, and did deceive, the defendant who relied on said representations in the issuance of said policy."

Demurrer to plea 4 was overruled.

Defendant then filed pleas 5 and 6, setting up the same provision as in plea 2, and averring that the insured in her application for the policy falsely represented that she was then in sound health, when in fact she was afflicted (plea 5) "with heart disease, and that such disease increased the risk of loss to the defendant"; and (plea 6) "with a serious disease of the heart, and that such misrepresentation increased the risk of loss."

Demurrers to these pleas were overruled, and plaintiff replied as follows:

"The plaintiff joins issue on pleas 5 and 6, and says that each plea is wholly untrue; that the facts are she was in good health, of fine appearance, and making her own living at hard labor for a woman of her years; that at the time she executed the application mentioned in said pleas the representation was reasonably and apparently true. And she denies each allegation thereof."

Demurrer to this replication was overruled.

The jury found for the plaintiff, and from the judgment thereon defendant appeals.

Victor Vance, of Gadsden, for appellant.

O.B. Roper, of Gadsden, for appellee.

SOMERVILLE J.

The provision of the...