Life Ins. Co. of Virginia v. Mann

• Decision Date: 01 November 1938
• Docket Number: 4 Div. 416.
• Citation: 28 Ala.App. 425,186 So. 583
• Parties: LIFE INS. CO. OF VIRGINIA v MANN.
• Court: Alabama Court of Appeals

186 So. 583

28 Ala.App. 425

LIFE INS. CO. OF VIRGINIA v MANN.

4 Div. 416.

Court of Appeals of Alabama

November 1, 1938

Rehearing Denied Jan. 24, 1939.

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Action on a policy of life insurance by Georgia Mann against the Life Insurance Company of Virginia. From a judgment for plaintiff, defendant appeals.

Affirmed.

Certiorari denied by Supreme Court in Life Ins. Co. of Virginia v Mann (4 Div. 81) 186 So. 586.

Denson & Denson, of Opelika, for appellant.

J. W Brassell, of Phenix City, for appellee.

RICE, Judge.

This suit is based on an insurance policy in the amount of Two Hundred Sixty-five ($265) Dollars which was issued by The Life Insurance Company of Virginia to Jesse J. Mann and delivered to him on January 21, 1935. Application for this policy was made in the early part of January, 1935. Georgia Mann, appellee herein, was the beneficiary named in this policy, and was the plaintiff below.

On or about May 28, 1935, assured, Jesse J. Mann, was committed to the Alabama Insane Hospital at Tuscaloosa, Alabama, and died an inmate thereof on September 9, 1935. There was evidence that he died from Meningo-encephalitis, and appellant contends that this disease was brought on or caused by syphilis.

Appellee made due proof of death on forms supplied by appellant, and the record shows that the premiums had been regularly paid to appellant. The evidence of appellee also tends to show that assured was in good health when the policy was applied for and issued, and that she never knew of appellee having syphilis.

The defendant filed a plea of the general issue in April, 1937 and the judgment entry dated September 15, 1937, refers to the plea of the general issue only, and no reference is made therein to any special pleas. However, there appears in the record certain pleas setting up in varying language that Jesse J. Mann misrepresented the condition of his health and that he had syphilis at the time the policy was applied for and was issued and delivered, and that for these reasons appellee should not recover.

"Plaintiff to establish a prima facie case, must prove: (1) The existence of the contract or policy sued on; (2) the death of the insured or the happening of the event provided for in the policy; and (3) the giving of notice and proof of death, as required by the policy." National Life & Accident Ins. Co. v. Winbush, 215 Ala. 349, 351, 110 So. 571, 572; United Ben. Life Ins. Co. v. Dopson, 26 Ala.App. 452, 162 So. 545; Union Mut. Ins. Co. v. Peavy, 24 Ala.App. 116, 133 So. 300, 302.

Unquestionably in this case plaintiff (appellee) made out a prima facie case by the evidence introduced.

Section 8364 of the 1923 Code of Alabama reads as follows: "No written or oral misrepresentation, or warranty therein made, in the negotiation of a contract or policy of insurance, or in the application therefor or proof of loss thereunder, shall defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increase the risk of loss."

The Supreme Court of Alabama in construing the above Section has said as follows: "To avoid the policy, unsound health must be misrepresented with intent to deceive and as being material to the risk, or as materially increasing the risk of loss (Independent Life Ins. Co. v. Seale, 219 Ala. 197, 121 So. 714; Life Ins. Co. of Va. v. Newell, supra [223 Ala. 401, 137 So. 16]). There are types of fatal maladies of which the courts take judicial knowledge such as 'tuberculosis and cancer,' as being material to the risk of insurance; the courts take no such judicial knowledge of or as to the several forms of diseases, such as syphilis, cirrhosis of the liver, or other ailments alleged in the pleas." Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192, 194, 146 So. 524, 525.

Nor do the courts take judicial knowledge that syphilis increases the risk of loss. Louisiana State Life Ins. Co. v. Phillips, 223 Ala. 5, 135 So. 841.

The authorities are also uniform to the effect that the burden was on appellant to show that the insured was afflicted with a disease or was not in sound health when the policy was issued, and that by the term disease as regards life insurance a serious illness which has impaired the constitution and left in its wake some organic or chronic effect undermining the general health is meant.

The Supreme Court in one case has stated the rule in the following language:

"The diseases pleaded in these pleas as a breach of the alleged warranty not being as a matter of common knowledge, such as would increase the risk, to sustain the plea the defendant had the burden of showing that the insured was afflicted with the alleged diseases; that they were serious, and such as affected the general soundness of his health. National Life & Accident Ins. Co. v. Bridgeforth , 124 So. 886; Padgett v. Sovereign Camp, W. O. W., 218 Ala. 255, 118 So. 456; Massachusetts Mut. Life Ins. Co. v. Crenshaw, supra [195 Ala. 263, 70 So. 768]; Providence Savings Life Assurance Society v. Pruett, 141 Ala. 688, 37 So. 700; Mutual Life Ins. Co. of New York v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649.

"The term 'disease' means more than a temporary disorder; it denotes a serious illness, which has impaired the constitution or left in its wake some organic or chronic effect undermining the general health. Joyce on Insurance, § 1848; Logan v. Provident Savings Life Assurance Society, 57 W.Va. 384, 50 S.E. 529; Peterson v. Modern Brotherhood of America, 125 Iowa, 562, 101 N.W. 289, 67 L.R.A. 631; Cushman v. United States Life Insurance Co., 70 N.Y. 72; note 37 C.J. 460, treating 'Scope and meaning of the word "disease."'

"'High blood pressure,' like vertigo, is more of a symptom than a disease. Mutual Benefit Life Ins. Co. v. Daviess' Ex'r, 87 Ky. 541, 9 S.W. 812. And it has been held that an anemic murmur of the heart 'indicating no structural defects,' but arising from temporary

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