Empire Life Ins. Co. v. Gee

• Decision Date: 21 November 1912
• Parties: EMPIRE LIFE INS. CO. v. GEE.
• Court: Alabama Supreme Court

60 So. 90

178 Ala. 492

EMPIRE LIFE INS. CO. v. GEE.

Supreme Court of Alabama

November 21, 1912

Appeal from Circuit Court, Dallas County; B. M. Miller, Judge.

Action by Susan B. Gee against the Empire Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See also, 171 Ala. 435, 55 So. 166.

The following pleas are directed to be set out:

(17) "For further answer to said complaint, and to each count thereof, defendant avers that insured made a written application to it for the issuance of said policy, and in said application he stated that he had no reason to believe that he was not in perfect health then and safely insurable and it avers that at that time the said insured was not then in perfect health and safely insurable, in this: That he was then suffering from a disease of the aorta, the main artery to the heart, and that he then knew that he was suffering from said disease, and was not in perfect health and safely insurable, and that said answer was false, and said insured then knew it was false, and it was made by him with the intent to obtain from defendant the issuance of said policy. And the defendant avers that when it issued and delivered said policy it had no knowledge that the said insured was then suffering from said disease, or that he was not in perfect health and safely insurable, and it did issue and deliver said policy relying on the truth of said answer of said insured."

(22) Adopts all the allegations of plea 17, with the averment that said misrepresentation is material to the risk.

(35) "In answer to the complaint, and each count thereof severally and separately, defendant says that plaintiff is not entitled to recover, for this: That prior to and as a part of the negotiations for the execution and procurement of the contract here sued on he, said W. H. Gee, falsely and fraudulently represented to this defendant that he had no reason to believe himself not to be at that time in perfect health and safely insurable; and defendant avers that said representation was false, and that said Gee was not at that time, nor was he at the time said policy was delivered, in perfect health and safely insurable, and that at said times said Gee had reason to believe he was not in perfect health and was not safely insurable. And defendant avers that at the time of said false representation the said Gee knew that said representation was false, that he made the same to defendant with the intent to deceive defendant, and with the intent that it should be acted on by defendant, and to induce defendant to execute the contract sued on; that said representation was not known by defendant to be false, and did deceive defendant, and did induce defendant to execute the contract here sued on."

(37) "Comes the defendant, and for further answer to the complaint, and each count thereof separately and severally says: That plaintiff ought not to maintain this suit, for this: That prior to and as a part of the negotiations for the execution and procurement of the contract here sued on the said W. H. Gee did represent that he had no reason to believe that he was not in perfect health and safely insurable; and defendant avers that at the time said W. H. Gee made said representation and at the time said policy was issued said representation was untrue, and said W. H. Gee knew it to be untrue, and that he was not in perfect health, nor was he safely insurable, and defendant avers that said misrepresentation was as to a matter that increased the risk of loss under said policy. Defendant further avers that neither at the time of said misrepresentation nor at the time said policy was issued did it know or have notice that said representation was untrue, and it further avers that it was induced by said misrepresentation to execute said policy."

"(40) "Defendant adopts all of plea 35, and avers, further that said misrepresentation was made with the actual intent to deceive defendant, and was as to a matter that increased the risk of loss."

The following charges were refused the defendant:

(A) "I charge you that if it appears that said principal contract of insurance had not been in force when said accident occurred to said Gee, from the result of which the plaintiff claimed he died, the plaintiff cannot recover of the defendant in excess of $2,500 and the interest thereon."

(2) "I charge you that if you find from the evidence that said Gee had rheumatism at the time he made the application for said insurance, and at the time the said policy was issued to him, and that it was unknown to the defendant that he had such disease, then you must return a verdict in favor of the defendant."

(3) "If at the time of the delivery of the policy in suit the decedent, Gee, was suffering from an aneurism of the aorta, which afterwards contributed to his death, then he was at the time of the delivery of the policy in suit in unsound health, as required by the provisions thereof, and your verdict should be for the defendant. If you find that he had this disease, the evidence is for you, and if he knew it, and concealed it, when he was asked to reveal it, this point is affirmed. This question would be material to the risk."

(4) Same as 3, except that it places rheumatism in place of aneurism of the aorta.

(5) "I charge you that unless the death of Gee was the result, directly or independently of all other causes, of bodily injuries effected through external, violent, and accidental means, and unless such injuries happened 60 days or more after the date of said policy, then you cannot find a verdict for the plaintiff for exceeding $2,500."

(6) "Before you can find for more than $2,500, with interest from the date of death of Gee, the death of said W. H. Gee must have been the result of an accident happening 60 days from the date of said principal contract of insurance, from the date of its going into effect."

(7) "Plaintiff cannot recover under the accident feature of the policy, unless the accident happened 60 days or more after said policy went into force."

(8) "Plaintiff cannot recover double indemnity under said policy sued on, unless the death of said Gee was the result of an accident happening 60 days or more after the date of the policy."

(13) "If at the time of the delivery of the policy Gee was suffering from an ailment which, if known to the company, would have caused the rejection of the risk, or the exaction of a higher rate of premiums, then, for the failure to communicate it to the company, it was not bound, and the verdict should be for the defendant."

(14) Same as 13.

(15) General affirmative charge.

(17) "If said Gee was suffering from rheumatism at the time he negotiated for and took out said policy, he was suffering from a disease which did increase the risk of loss under the said policy."

(41) "I charge you that the defendant is not liable in this case for the accident indemnity claimed by the plaintiff, unless the accident to said Gee, from which plaintiff claims his death resulted, occurred after said policy sued on had been in force for 60 days."

(42) "Gee was not indemnified against death by accident, unless the accident which caused the death occurred after said policy had been in force 60 days."

(43) "If Gee died as the result of an accident which occurred on June 4, 1910, then plaintiff cannot recover more than the sum of $2,500, with interest."

The following are the questions propounded to the experts Furniss and Kenan:

"I will ask you whether or not, if he had had a blow on the left side, on this particular vein, that was sufficient to color on the outside, whether or not, in your opinion, that could have caused the aneurism?

"I will ask you whether or not, if Dr. Gee, substantially 30 days prior to that, had had a blow on the chest sufficiently violent to knock him down, and sufficiently violent to make his chest discolored, and to make him spit blood, and that after that time he had fallen off 30 pounds in weight, that previous to that time he was in a healthy condition, then I will ask you whether or not that blow was the probable cause of the aneurism?"

Other similar questions were propounded to both witnesses, each of whom, the testimony showed, were regularly engaged in the practice of medicine.

Mallory & Mallory, of Selma, for appellant.

Pettus, Jeffries, Pettus & Fuller, of Selma, for appellee.

DE GRAFFENRIED, J.

Insurance policies, as a general rule, should be liberally construed, and the language used in them should usually be given its ordinary common interpretation. No strained or unusual construction should be given to any of the terms of a policy of insurance, in favor of the insurer or of the insured; but when a clause in such a policy, when read in connection with all the other parts of the policy, is uncertain in its meaning, and is capable of two equally rational constructions, that construction should be placed upon the clause which is most favorable to the insured. These rules are so firmly fixed by our own adjudications, as well as by the decisions of the courts of last resort of our sister states, that we deem it unnecessary to cite authorities to sustain them. They are, in truth, axioms of the law relating to the subject of insurance.

1. In the present case William Henry Gee insured his life with appellant for the sum of $2,500 in favor of his sister, Susan B. Gee. The policy was issued on April 22, 1910, and contained, among others, the following provisions:

"Guaranteed Perfect Protection.

"(A) During the premium payment period, after this policy has been in force 60 days, subject to the limitations hereinafter stated, if the principal contract is in force, the insured will be indemnified against death or loss of time as

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