Independent Life Ins. Co. v. Carroll

• Decision Date: 21 March 1929
• Docket Number: 6 Div. 322.
• Parties: INDEPENDENT LIFE INS. CO. v. CARROLL.
• Court: Alabama Supreme Court

121 So. 88

219 Ala. 79

INDEPENDENT LIFE INS. CO. v. CARROLL.

6 Div. 322.

Supreme Court of Alabama

March 21, 1929

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Action on a policy of life insurance by J. J. Carroll against the Independent Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Huey &amp Welch and W. G. Stone, all of Bessemer, for appellant.

Lipscomb & Lipscomb, of Bessemer, for appellee.

GARDNER J.

Appellee was named beneficiary in a policy insuring the life of his wife, Josephine Carroll, who died August 8, 1927, and brings this suit to recover thereon. There was verdict and judgment for plaintiff, from which defendant appeals.

The counts of the complaint substantially conform to the Code form (section 9531, form 12, Code of 1923), and the demurrer thereto was properly overruled. National Life Ins. Co. v Puckett, 217 Ala. 110, 115 So. 12, where attention is directed to the change in the Code form by omission of averment as to the terms of insurance. See, also American Nat. Ins. Co. v. Moss, 215 Ala. 542, 112 So. 110. The case of Pence v. Mut. Benefit Ins. Co., 180 Ala. 583, 61 So. 817, cited by counsel for appellant construed the form as then existing in the Code of 1907, and is therefore without application.

The criticism of count 1, based upon the case of Oberhaus v. State ex rel. McNamara, 173 Ala. 483, 55 So. 898, is without merit, and needs no discussion here.

The policy sued upon was of date April 4, 1927, and in the sum of $225.00. There was no other policy or contract insurance of any character. We are therefore unable to see the usefulness of count 1, which seeks recovery upon a policy of March 1, 1926, and in the sum of $250.00, and it would seem may well be eliminated.

Count 2 went beyond the Code form, and made the policy an exhibit thereto. We find no material variance in the averments of the count and the policy thus exhibited. Count 2 therefore answers all the purposes of the case. The pivotal question, however, turns upon the merits of the case as presented by the pleadings and the proof in support thereof.

Special pleas were interposed incorporating warranties contained in the policy as to the "sound health" of the insured at the time of its issuance, and also a "warranty" on the part of the insured that she had never had any "disease of the heart." The several pleas then allege that the insured at the time of the issuance of the policy was suffering with chronic valvular heart disease, cardia nephritis, or cardia asthma, and each of which increased the risk of loss. No replications were filed by plaintiff to these pleas, but issue was taken thereon and the cause submitted to the jury upon the issue thus joined.

It is first insisted the affirmative charge was due defendant, based upon the testimony of Dr. Denson, to the effect that during the year 1926 insurer was suffering from a chronic valvular heart disease, which continued to her death by apoplexy on August 8, 1927.

We enter into no detailed discussion of the evidence. Suffice it to say it has been carefully considered by the court in consultation.

The evidence of plaintiff, husband of the insured, may properly be considered as presenting some conflict, however slight, with the testimony of Dr. Denson. The scintilla rule of evidence prevails in this state, and, in the light of this rule, we entertain the view a jury question was presented. Mut. Life Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A. L. R. 649; Padgett v. Sov. Camp, W. O. W. (Ala. Sup.) 118 So. 456; Metropolitan Life Ins. Co. v. Hyche, 214 Ala. 447, 108 So. 40.

It is next insisted that the motion for new trial should have been granted upon the ground that the verdict is contrary to the great weight of the evidence. While fully mindful of the difference...