Massachusetts Mut. Life Ins. Co. v. Crenshaw

• Decision Date: 25 November 1915
• Docket Number: 7 Div. 711
• Citation: 195 Ala. 263,70 So. 768
• Parties: MASSACHUSETTS MUT. LIFE INS. CO. v. CRENSHAW.
• Court: Alabama Supreme Court

70 So. 768

195 Ala. 263

MASSACHUSETTS MUT. LIFE INS. CO. v. CRENSHAW.

7 Div. 711

Supreme Court of Alabama

November 25, 1915

Rehearing Denied Jan. 20, 1916

Appeal from Circuit Court, Etowah County; J.E. Blackwood, Judge.

Action by Birdie M. Crenshaw against the Massachusetts Mutual Life Insurance Company for the face of a policy issued upon the life of John W. Crenshaw. Judgment for plaintiff, and defendant appeals. Affirmed.

W.J Boykin, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellee.

SAYRE J.

After the judgment first rendered in this cause had been reversed on appeal, and the cause remanded for a new trial (186 Ala 460, 65 So. 65), defendant, now again appellant, offered to file a number of pleas which had been conceived in the effort to make a more satisfactory statement of the defense upon which, in varying shapes, it had previously relied, to wit that the policy had been procured by the fraud of the insured. At the first trial, as appears from such of the original pleas as have been reproduced in the record before us, defendant averred that certain representations made by the insured in order to obtain the policy were false and made with an actual intent to defraud. In some of those pleas it was averred that the misrepresentations complained of had been made in the original application for the policy; in others the allegation was that they had been made in the subsequent "unmodified health certificate." In all of them it was averred that the matters misrepresented were material to the risk assumed by defendant, or it appeared that they were of such inherent gravity as that their materiality was perhaps to be inferred as matter of law. The obvious purpose of a majority of the pleas offered for the first time on the second trial was merely to recast the defenses originally interposed. Several of them, however, sought to change or modify the ground of defense by averring that the matters misrepresented in the "unmodified health certificate" were material to the risk without averring that they were made with the actual intent to defraud. All of them were in the first place filed with the clerk without leave of the court first had and obtained, and were for that reason stricken on motion. Then, upon defendant's request for leave to file, the court rejected all of them except that one marked AA.

These pleas offered at the last trial, with the possible exception of those of the class last above referred to, though not so denominated, were, in substance, amendatory statements of the defense upon which the case had been first tried; they were not additional or wholly different pleas within the purport find meaning of the rule laid down in Jones v. Ritter, 56 Ala. 270, and the line of cases cited in Craig v. Pierson, Lbr. Co., [179 Ala. 535, 60 So. 838, they fell rather under the remedial influence of the statute of amendments, and defendant should have been allowed to place them upon the file, their legal sufficiency remaining subject to question by demurrer, unless, indeed, it appeared that in other pleas already on file defendant had the full benefit of the defense it was thus attempting to cast into new shapes. From an inspection of the record, including the pleas upon which both trials were had and plea AA, which latter stated its matter of defense with a generality that secured to defendant the right to prove its substance without the embarrassment of unnecessary detail--from this record it is to be inferred that the trial judge refused to allow the filing of the numerous pleas about the exclusion of which defendant now complains on the theory that they were superfluous, and would result only in the useless complication of a record already incumbered with repeated statements of the same defenses. In this the court was right, certainly so far as its action concerned the pleas offered other than those which alleged that the matter misrepresented was material without more.

As for the pleas of the last-mentioned character, if they be taken to have proposed an entirely new ground of defense, it was within the discretion of the court to allow or reject them under the authority of Jones v. Ritter, supra, and Craig v. Pierson Lumber Co. to which we have heretofore referred. And, whether they be considered as additional pleas within the meaning of those cases or as merely amendatory statements of the defenses otherwise pleaded, they were in either case defective in substance, had never properly found their way into the record, and there was no error in the court's denial of leave to file them. Our reasons for this conclusion will be stated in connection with defendant's exception to a charge given for plaintiff in the following language:

"The court charges the jury that, unless they are reasonably satisfied from the evidence that the insured made some false representation charged in some one of the pleas with the actual intent to deceive defendant, the jury should find a verdict for the plaintiff."

Plaintiff had shown without dispute the payment of a premium, the issue of the policy, and the death of the insured, within the term covered by the premium. On this evidence and the issues made by the court's rulings on the pleas this charge was clearly correct. But defendant (appellant) contends that the giving of this charge and the exclusion of its pleas alleging the misrepresentation of a material matter without more operated to cut off its defense under the last clause of section 4572 of the Code, which its said pleas were intended to interpose; the section reading as follows:

"No written or oral misrepresentation, or warranty therein made, in the negotiation of a contract or policy of life 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."

Defendant's insistence comes to this, that, if the assured in the interval between his original application for the policy and the date of his "unmodified health certificate" suffered an illness affecting the probable duration of his life and about which he consulted a physician, then plaintiff could not recover, even though the jury should find, as under well-developed, though strongly controverted, tendencies of the evidence they were authorized to find, that he failed to state the fact of his illness and the attendance of a physician, not with the intent to deceive, but because he was ignorant of the serious portent of his malady and in good faith believed it to have been...