Crumpton v. Pilgrim Health & Life Ins. Co.
Citation | 46 So.2d 848,35 Ala.App. 363 |
Decision Date | 06 June 1950 |
Docket Number | 3 Div. 919 |
Parties | CRUMPTON v. PILGRIM HEALTH & LIFE INS. CO. |
Court | Alabama Court of Appeals |
John A. Sankey, of Montgomery, for appellant.
Walter J. Knabe, of Montgomery, for appellee.
J. A. Crumpton, plaintiff below, recovered a judgment against the Pilgrim Health and Life Insurance Company. The basis for the suit is a policy of insurance on the life of Franklin Williams, a stepson of Crumption, the beneficiary. The nature of the policy is such that a physical examination was not required for its issuance.
After verdict and judgment, the trial court granted the defendant's motion for a new trial. This appeal is by the plaintiff, and he here complains of this action of the court below.
The order granting the motion does not disclose on what ground it was granted. In this state of the record, the judgment must be sustained on review if we conclude that it was authorized on any ground assigned in the motion. Peyton v. Lewis, 10 Ala.App. 360, 64 So. 472; Bridgeforth v. National Life & Acc. Ins. Co., 25 Ala.App. 75, 140 So. 770; W. M. Templeton & Son et al. v. David, 233 Ala. 616, 173 So. 231; American Mutual Liability Ins. Co. v. Louisville & N. R. Co., 250 Ala. 354, 34 So.2d 474; Martin v. Birmingham Southern R. Co., 250 Ala. 583, 35 So.2d 339; Camp v. Atlantic Coast L. R. Co., 251 Ala. 184, 36 So.2d 331.
One ground of the motion is that the verdict of the jury is against the great weight of the evidence. We entertain the view that the action of the court below must be sustained on this ground. We will, therefore, confine our discussion to this aspect of the review.
At the time the policy was issued, the appellant was soliciting agent of the appellee. His duties were to solicit applications for insurance policies and collect premiums.
The insured was about thirteen years of age and lived in the home with his mother and appellant.
The application for the policy bears date of March 11, 1948. The insured's name appears over 'Signature of Applicant.' The policy was issued on March 22, 1948.
The mother of the boy was first named as beneficiary. However, this relationship was changed and the appellant was made beneficiary on January 28, 1949. The insured died of Hodgkin's disease on April 2, 1949.
In the application some questions and answers are as follows: 'Weight Average Lbs.' 'Give date of last illness None Disease None.'
Dr. Dungee testified that he treated the insured in August 1947. In pertinent parts, he stated:
'Q. Hodgkin's disease, how long does it take that disease to develop?
A blood test was not taken by this physician.
Dr. Jabour examined the insured on May 5, 1947. He testified in part:
The doctor also testified that Hodgkin's disease involves the lymphoid glands and makes its appearance in the neck; that the condition of the insured was not definitely diagnosed as this malady until January 1949; that ; that according to the history of the case there was something wrong with the insured beginning in 1947 and continuing up until his death.
The testimony of Sister Mary Dennis disclosed that the insured entered St. Jude School in September 1946; that in November of that year he complained of severe abdominal pains; that he remained enrolled in the school through May 1947, from which time he never returned.
There was evidence from neighbors that during the years 1947 and 1948 the boy was seen around the neighborhood and he appeared to be a normal child.
The appellant testified that he thought his stepson was all right at the time the application for the policy was executed; that he (appellant) filled out the application blanks and answered the questions which we have set out supra; that he knew at the time that the insured had been treated in 1947 by Drs. Jabour, Boozer, Blue, and Dungee. The appellant testified that he did not recall that Dr. Weil had treated the boy. However, he did admit in his testimony that in the proof of death, to which he had sworn, he had included the statement that Dr. Weil had treated the insured.
We have attempted to recite the tendencies of the evidence in some detail. This will afford a fair and illustrative presentation of the question of instant concern.
The policy of insurance contains this provision: ...
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