Inglish v. United Services General Life Co.

• Decision Date: 01 October 1980
• Citation: 394 So.2d 960
• Parties: Bonnie Lummus INGLISH v. UNITED SERVICES GENERAL LIFE COMPANY, an Oklahoma Corporation. Civ. 2231.
• Court: Alabama Court of Civil Appeals

Page 960

394 So.2d 960

Bonnie Lummus INGLISH v. UNITED SERVICES GENERAL LIFE COMPANY, an Oklahoma Corporation.

Civ. 2231.

Court of Civil Appeals of Alabama.

Oct. 1, 1980.

Rehearing Denied Nov. 5, 1980.

Harold Howell of Howell, Sarto & Howell, Prattville, for appellant.

Charles B. Paterson of Ball, Ball, Duke & Matthews, Montgomery, for appellee.

BRADLEY, Judge.

This is an insurance case.

On June 29, 1977 Gordon T. Inglish, then a sergeant in the United States Air Force, applied for a policy of life insurance in the amount of $10,000 with United Services General Life Company (hereinafter referred to as United Services). On his application for this policy, Sergeant Inglish was requested to truthfully and completely disclose to the best of his knowledge and belief certain details of his medical history and to subjectively evaluate his extant medical condition. He provided the following answers to the following questions:

26. Date of latest physical examination.

Day (If examined)

Month within last 30 days Year

A 6 10 77

27. Details of any hospitalization, medication or treatment recommended as a result of above examination(s). If none, SO STATE.

No

28. Name all other physicians and practitioners consulted, or who have examined or treated A ... above within the past five years. State for what conditions or purposes. Give dates and full details. If none, SO STATE.

Annual A.F. Physical

29. Has A ... ever had or been treated for cancer, diabetes, heart disease, high blood pressure or tuberculosis? No.

If "yes", give dates and full details in No. 36, including names and addresses of doctors.

30. Is (the) person in A ... now to the best of your knowledge and belief in good health and free from defect or deformity? Yes.

On the basis of his answers to these and other questions contained in his application for insurance, United Services, on July 1, 1977, issued a policy of insurance in the amount of $10,000 on the life of Gordon T. Inglish. Appellant was designated as beneficiary of the proceeds of the policy. Prior to his retirement from the military on September 1, 1977, Sergeant Inglish underwent an Air Force retirement physical which began on May 3, 1977 and ended on June 23, 1977. After his retirement he performed repair and maintenance work on various aircraft for the Civil Air Patrol at Maxwell Air Force Base in Montgomery, Alabama. On May 4, 1978 Sergeant Inglish died of a heart attack. United Services received timely notice of the death of Gordon Inglish but refused to pay appellant any portion of the proceeds of his life insurance policy. Appellant thereupon filed suit against appellee to recover the proceeds. Appellee answered denying liability on the policy by virtue of § 27-14-7 of the 1975 Alabama Code which provides, inter alia, that:

Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy or contract unless either:

(1) Fraudulent;

(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or

(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract at the premium rate as applied for, or would not have issued a policy or contract in as large an amount or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

From a jury verdict in favor of appellee appellant has prosecuted this appeal contending that the trial court erred to reversal in (1) permitting appellee's vice president of underwriting, Don F. Manigold, to testify over appellant's timely objection that United Services had never been involved in a lawsuit over a claim on a policy; (2) denying appellant's motions for a directed verdict or for a judgment notwithstanding the verdict or for a new trial on the ground that appellee failed to prove that it would have declined Sergeant Inglish's application had it been aware of certain facts respecting his medical condition which it only discovered subsequent to his death; (3) permitting Mr. Manigold to testify that Gordon Inglish's medical records were inconsistent with his application for insurance; (4) allowing Mr. Manigold to testify over objection that he would not have issued the policy under normal operating procedures if he had been familiar with the contents of Sergeant Inglish's medical records; (5) failing to recognize that appellee had neglected to prove that Sergeant Inglish had made fraudulent misrepresentations in completing his application for life insurance with appellee; and (6) sustaining appellee's objection to appellant's contention on final argument that if appellee failed to prove that Sergeant Inglish had anything but heart disease at the time he applied for insurance with United Services the jury should return a verdict for appellant. For the reasons detailed below, we affirm.

In his opening statement to the jury, counsel for the appellant made the following observations:

The life insurance company (sic) enjoy a good reputation, and deservedly so. They do many charitable and worthwhile works in the community, and they are pillars in the community, and they do some great things. And I am favorably disposed to them. Unlike casualty insurance companies, they generally pay off in the amount that is set, whatever is in the policy, there is no argument. However, if someone dies within two years after making an application for insurance, they have a tendency sometimes, as in this case, not to want to pay off. And they scramble around and try to figure out why or how they can get out from under the risk. And they normally claim misrepresentation.

Appellee raised no objection to this portion of appellant's argument but was permitted to introduce as part of its case in chief, over appellant's timely objection, evidence that United Services had never been involved in a lawsuit over a claim on one of its insurance policies. Counsel for United Services argues that such evidence was properly admitted to rebut appellant's impermissible introduction in her opening statement of evidence impugning appellee's character under the doctrine of curative admissibility and "was the only method open to United Services to rebut opposing counsel's damaging remarks during open (sic) statements." We cannot agree. As a general rule, in a civil action, a party's good or bad character with regard to a certain activity may not be introduced into evidence "for the purpose of showing that, on the occasion in question, he acted in keeping with that character. (Footnote omitted.)" C. Gamble, McElroy's Alabama Evidence § 34.01 (3d ed. 1977); see Smith v. Civil Service Board of City of Florence, 52 Ala.App. 44, 289 So.2d 614 (1974). Thus, evidence of a life insurance company's tendency to resist payment of death benefits to beneficiaries of its policies on spurious grounds is inadmissible to prove that it is refusing to pay such benefits on a policy which is the subject of the case at bar on similar grounds. If such character evidence is erroneously received into evidence, however, the opponent of same has the right to rebut it with evidence of the company's propensity to pay these benefits. See C. Gamble, supra at § 14.01. Hence, appellee could properly introduce into evidence testimony that it had never been involved in a lawsuit over a claim involving one of its insurance policies if appellant had previously injected into the trial evidence of United Services' propensity to resist payment of death benefits to beneficiaries of its life insurance policies on specious grounds. But appellant did not introduce evidence of such propensity into the trial of this action. Appellant inferred that appellee possessed this propensity only in her opening statement. Under Alabama law, "(t)he opening statement of counsel ... is not evidence and does not necessarily contain all or even a major part of (a party's) case." Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588 (1939). It follows that appellee should not have been permitted to introduce at trial evidence that it had never been sued on a claim arising under one of its insurance policies. However, we do not believe that such an error warrants a reversal of the verdict rendered in this case. Rule 45 of the Alabama Rules of Appellate Procedure provides in part that:

No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties. (Emphasis supplied.)

Upon an examination of the entire record in this case, we cannot say that the error of the trial court noted above probably injuriously affected substantial rights of the plaintiff. It will become apparent in the course of this opinion that there was testimony from which the jury might reasonably have concluded that Gordon T. Inglish knowingly misrepresented his medical history to appellee at the time he applied for life insurance with United Services. Evidence that appellee had never been previously involved in a lawsuit over a claim on one of its policies probably had a minimal impact upon the jury's deliberations.

Appellant's third assignment of error, as noted previously, is that the trial court erroneously permitted Mr. Manigold to testify over appellant's timely objection that Gordon Inglish's medical records were inconsistent with his application for insurance. Phrased differently, appellant argues that Mr. Manigold was permitted to testify that Sergeant Inglish had heart disease at the time he applied for life insurance with appel...