Heralds of Liberty v. Collins

• Decision Date: 04 November 1926
• Docket Number: 3 Div. 772
• Citation: 216 Ala. 1,110 So. 283
• Parties: HERALDS OF LIBERTY v. COLLINS.
• Court: Alabama Supreme Court

110 So. 283

216 Ala. 1

HERALDS OF LIBERTY v. COLLINS.

3 Div. 772

Supreme Court of Alabama

November 4, 1926

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action on a policy or certificate of life insurance by Katie Collins against the Heralds of Liberty. From a judgment for plaintiff, defendant appeals. Affirmed.

Henry C. Meader and Ball & Ball, all of Montgomery, for appellant.

Hill Hill, Whiting, Thomas & Rives, of Montgomery, for appellee.

THOMAS J.

The suit is on a certificate of a fraternal benefit association.

The distinction between misrepresentations and warranties in insurance contracts has been defined and need not be repeated. For discussions of phases thereof under the former statutes, see Alabama Gold Life Ins. Co. v. Johnston, 80 Ala. 467, 2 So. 125, 59 Am.Rep. 816; Mutual Life Ins. Co. v. Allen, 174 Ala. 511, 56 So. 568; Metropolitan Life Ins. Co. v. Goodman, 196 Ala. 304, 71 So. 409; Massachusetts Mutual Life Ins. Co. v. Crenshaw, 195 Ala. 263, 70 So. 768; Empire Life Ins. Co. v. Gee, 171 Ala. 435, 55 So. 166. And the statute, as amended, putting fraternal benefit associations, in matters of misrepresentations and warranties, on the same footing as old life insurance, was considered in Brotherhood of Railway & S.C., etc., v. Riggins, 214 Ala. 79, 107 So. 44 (preserving the declared distinction between warranties and a mere representation, and declaring the old and new statute of like effect to both classes of insurance); Sovereign Camp v. Hutchinson, 214 Ala. 540, 108 So. 520 (when the misrepresentations were in the form of warranties); Accident Ins. Dept., etc., v. Brooks, 111 So. ----; Code of 1923, §§ 8049, 8364, 8507.

Applying the tests of the rule to the pleas, they are insufficient in averments as setting up mere misrepresentations in applications for insurance. Plea 2 uses the word "warranted" without averring that the general ailment stated increased the risk of loss to the insurer. This is aside from the fact that the policy declared upon and in evidence contained the provision:

"All statements made by the member shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid this certificate or be used in defense of a claim hereunder, unless it is contained in the written application for membership and the medical examination, both of which constitute a part of this contract."

Had there been error in the ruling on the demurrer to plea 2, it could not have been reversible error under the express declarations of the policy, and therefore that ruling would have been without injury. Indemnity Ins. Co. of North America v. Gardner, 214 Ala. 528, 529, 108 So. 342.

Pleas 3, 4, 5, 6, 7, and 8 were based on misrepresentations merely (not warranties) and failed to aver that the misrepresentations pleaded were not only false and material, but that they were relied upon as true by the defendant. Sovereign Camp v. Hutchinson, 214 Ala. 540, 543, 108 So. 520. This was a defect in pleas 3, 4, 5, and 6 that justified the ruling of the trial court.

Pleas 7 and 8 averred of a misrepresentation of material facts, and defendant's reliance thereupon, that "assured had notice" of the falsity of the statement when made, and that the matter was material to and increased the risk. If it be said the words "had notice" were the equivalent of the averment of fact showing an actual intent to deceive with a knowledge of the falsity of the fact, and that defendant relied thereupon, there was no reversible error committed. The same matter sought to be pleaded in Nos. 6, 7, and 8 was set up in pleas 9, 10, and 11, and the conclusion thereof is the averment that said false statements were made by the assured with the intent to deceive the defendant, and that it relied thereupon in issuing the policy.

The questions to the witnesses Rivers and Gordon called for conclusions on a matter directly in issue. Amer. Nat. Ins. Co. v. Rosebrough, 207 Ala. 538, 93 So. 502; Weller & Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L.R.A. (N.S.) 1106.

There was no error in sustaining objection to the question to Dr. Blue:

"Isn't it a fact or isn't it a condition material to a life

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