Hunt v. Preferred Acc. Ins. Co. of New York

• Decision Date: 21 April 1911
• Citation: 172 Ala. 442,55 So. 201
• Parties: HUNT v. PREFERRED ACCIDENT INS. CO. OF NEW YORK.
• Court: Alabama Supreme Court

55 So. 201

172 Ala. 442

HUNT v. PREFERRED ACCIDENT INS. CO. OF NEW YORK.

Supreme Court of Alabama

April 21, 1911

Rehearing Denied May 5, 1911.

Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.

Action by J. C. Hunt against the Preferred Accident Insurance Company of New York. From a judgment for defendant, plaintiff appeals. Affirmed.

Plea N3 is as follows: "Defendant, for answer to the complaint and each count thereof separately and severally, pleads and says: That plaintiff made an application in writing, signed by him, for said policy sued for. That said application contained the following provision: 'I hereby apply for the policy, to be based upon the following statements of fact, all of which I hereby warrant to be true and complete.' That it was further provided in said application that said application, together with the warranty, should be the basis of the contract between defendant and insured. And defendant further avers that it was and is provided in and by said policy that the same was issued in consideration of the agreements and statements in the schedule of warranties thereon, and that said insured warranted said statements to be true by the acceptance of such policy, and which were made a part thereof, and in consideration of the annual premium. And defendant avers that in and by said schedule of warranties upon said policy it was and is provided that the issuance of said policy was based upon the statement of facts set forth in said schedule, all of which were warranted therein by said insured to be full and complete; that it was further provided in said schedule that the application made by the insured and the warranties contained in the said schedule, together with the premium paid by him, should be the basis of such contract. And defendant avers that in said application plaintiff stated that he had not been disabled, nor had he received medical or surgical attention, during the seven years preceding the same, except in 1904, for carbuncle, lasting ten days. And defendant avers that it was stated in said schedule of warranty on said policy that plaintiff had not been disabled nor had he received medical or surgical attention, during the past seven years, except as follows: In 1904, for carbuncle lasting ten days. And defendant avers that said statement and warranty are untrue, in this: That during the two years prior to October 3, 1908, plaintiff was laid up about three days with a fistula, and then and there received medical and surgical attention therefor. And defendant avers that it has received no part of said premiums of said policy. Wherefore defendant says that by reason of said untrue statement, and breach of said warranties, said policy was and is null and void. Wherefore it is not indebted to plaintiff."

Coleman Dent & Weil, for appellant.

Hill Hill & Whiting, for appellee.

SAYRE J.

This suit was brought by appellant on a policy of health insurance. Errors are assigned on the judgment of the court overruling demurrers to pleas designated in the record as "N3," "O4" and "Q6." So far as concerns the objections taken to them, these pleas are substantially the same, and it is conceded on all hands that there is no occasion to discriminate between them. To avoid prolixity we will deal with the plea called "N3."

There is no allegation of fraudulent misrepresentation. The evident purpose of the plea is to set up a breach of warranty made by the assured, and in consideration of which the assured procured the policy to be issued to him. We deal with those grounds of demurrer which have been noticed in appellant's brief. The demurrer alleges the plea to be defective, because it fails to show that the warranty alleged to have been breached was indeed a warranty, and because having been made in the application for the policy, the plea fails to show that the warranty was plainly expressed...