Independent Life Ins. Co. v. Seale

Decision Date11 April 1929
Docket Number6 Div. 323.
PartiesINDEPENDENT LIFE INS. CO. v. SEALE.
CourtAlabama Supreme Court

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

Action on a policy of life insurance by Leady W. Seale against the Independent Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

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

Benton Bentley & Moore, of Bessemer, for appellee.

FOSTER J.

A clause in a life insurance policy to the effect that no obligation is assumed by the insurer unless, on the date of the delivery of the policy, insured is alive and in sound health, has frequently been held by this court to be in legal effect a warranty, within the terms of section 8364 of the Code. Reliance Life Ins. Co. v. Sneed, 218 Ala. 669 117 So. 307; Cotton States Life Ins. Co. v. Crozier, 216 Ala. 537, 113 So. 615; So. Life & Health Ins. Co. v. Morgan, 216 Ala. 529, 113 So. 540; Mut. Life Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A. L. R. 649. And if the unsound health consists of tuberculosis, the court takes judicial knowledge that it does increase the risk of loss. So. Life & Health Ins. Co. v. Morgan, supra; Brotherhood of Rwy. & S. S. Clerks v. Riggins, 214 Ala. 79, 107 So. 44; Metropolitan Life Ins. Co. v. Hyche, 214 Ala. 447, 108 So. 40; Miller v. Metropolitan Life Ins. Co., 214 Ala. 4, 106 So. 335.

It is therefore not necessary to make a specific allegation that tuberculosis, of which insured is alleged to have been afflicted on the date of the issuance of the policy, increased the risk of loss, or that the warranty of sound health was with the intent to deceive. By such judicial knowledge, allegation and proof of the requirements of section 8364, in this respect, are under those circumstances dispensed with. Miller v. Metropolitan Life Ins. Co., supra.

Appellant's plea 3 fully presented the defense without any additional special pleading, and without any burdensome allegations. It alleges that the insured, at the date of the delivery of the policy, was afflicted with pulmonary tuberculosis, and that this increased the risk of loss. The allegation that this increased the risk of loss does not add to the burden of proof, when it is alleged that the unsound health consists of pulmonary tuberculosis, or any other unsound health which the court judicially knows does increase the risk of loss. There was, therefore, no injury to appellant resulting from the judgment sustaining demurrer to pleas 5 and 6, though they may not be subject to demurrer-not necessary to decide.

The issue made by the pleading was simply one of fact for the jury-whether insured had pulmonary tuberculosis on the date of the delivery of the policy. The court so charged the jury in its oral charge, and in numerous written charges given for appellant instructed them plainly that, if insured was afflicted with tuberculosis at the time the policy was issued, it was void, and in that event plaintiff could not recover anything (charges 7, 15, 16, 17, 21, 22, 26, and 29, given for appellant). Therefore the refused charges 3, 4, 8, and 28 are sufficiently covered by the given charges.

The only other charges refused appellant, which it claims in brief were erroneous, were affirmative charges in various forms. We think the court properly submitted to the jury the question of whether insured had tuberculosis at the time of the issuance of the policy, and that upon this issue alone the result should be...

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26 cases
  • Metropolitan Life Ins. Co. v. James, 8 Div. 507.
    • United States
    • Alabama Supreme Court
    • 22 March 1934
    ... ... the particular circumstances of the case. Section 8050, Code ... of 1928; Independent Life Ins. Co. v. Seale, 219 ... Ala. 197, 121 So. 714; Sovereign Camp, W. O. W., v ... Hutchinson, 214 Ala. 540, 108 So. 520. Thus the fact of ... ...
  • New York Life Ins. Co. v. McJunkin
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    ... ... uninsurable; that such stipulation may be regarded as of ... the essence of life insurance. Independent Life Ins. Co ... of America v. Butler, 221 Ala. 501, 129 So. 466 ... In ... Bankers' Credit Life Ins. Co. v. Ayres, 223 Ala ... 407, ... other and later cases on the effect of condition as to ... delivery while the insured is in good health. Independent ... Life Ins. Co. v. Seale, 219 Ala. 197, 121 So. 714; ... National Life & Accident Ins. Co. v. Bridgeforth, ... 220 Ala. 314, 124 So. 886; Metropolitan Life Ins. Co. v ... ...
  • National Life & Acc. Ins. Co. v. Mixon
    • United States
    • Alabama Supreme Court
    • 30 August 1973
    ...of the Code of 1923. (Title 28, Section 6, Code, 1940) Authority for the foregoing is to be found in the case of Independent Life Ins. Co. v. Seale, 219 Ala. 197, 121 So. 714. The Supreme Court, in the case of Mutual L. Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649, was at......
  • National Life & Acc. Ins. Co. v. Collins
    • United States
    • Alabama Supreme Court
    • 11 February 1943
    ...Ins. Co., supra; Brotherhood etc., v. Riggins, supra; Brown, Adm'x., v. Greenfield Life Ass'n, 172 Mass. 498, 53 N.E. 129; Independent Life Ins. Co. v. Seale, supra; Mutual Life Ins. Co. v. Mankin, 223 Ala. 679, 138 265." In the consideration of the usual form of ordinary life policies in C......
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