Independent Life Ins. Co. v. Seale

• Decision Date: 11 April 1929
• Docket Number: 6 Div. 323.
• Parties: INDEPENDENT LIFE INS. CO. v. SEALE.
• Court: Alabama Supreme Court

121 So. 714

219 Ala. 197

INDEPENDENT LIFE INS. CO. v. SEALE.

6 Div. 323.

Supreme Court of Alabama

April 11, 1929

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...