Metropolitan Life Ins. Co. v. Hyche

Decision Date18 March 1926
Docket Number6 Div. 617
Citation214 Ala. 447,108 So. 40
PartiesMETROPOLITAN LIFE INS. CO. v. HYCHE.
CourtAlabama Supreme Court

Rehearing Denied April 22, 1926

Appeal from Circuit Court, Tuscaloosa County; Fleetwood Rice, Judge.

Action by Ethel Hyche against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Foster Rice & Foster, of Tuscaloosa, for appellant.

E.L Dodson, of Tuscaloosa, for appellee.

SAYRE J.

Action on a policy of life insurance.

Defendant filed numerous pleas setting up breaches of an agreement into which the insured entered in order to induce defendant to issue the policy. For further plea defendant alleged the matters and things shown by the plea numbered 22, which is set out in the statement. The court, on plaintiff's motion, struck this plea numbered 22 on the ground that it came too late. It is not clear upon the record just what relation in point of time the plea in question bears to the other pleading in the case, but, however that was, it appears that the proposed plea was lacking in merit, and that it was incapable of amendment so as to make of it a good plea. Moreover, we must presume that it came at a time when the court had a discretion to deny its consideration on the ground stated for the ruling. We cannot, therefore, say there was error. Jones v. Ritter, 56 Ala. 270; Mass Mutual v. Crenshaw, 70 So. 768, 195 Ala. 263.

It is argued that the trial court erred in overruling defendant's demurrer to special replication A. This replication was to the effect that the agreements or false statements alleged in certain pleas were not incorporated by reference or otherwise in the policy. This was a good replication under our statute. Code 1923, § 8371; Empire Life v. Gee, 55 So. 166, 171 Ala. 435, and cases cited at page 438.

Under the pleadings it was competent and material for defendant to show in what condition of health insured was at the date of her application and at the date on which the policy was issued. The witness Dr. Searcy was a medical expert and competent to answer defendant's question "whether tuberculosis was more ravaging among the colored race then among the white"; but the comparison defendant thus sought to set up was foreign to any issue in the case, and the court properly sustained plaintiff's objection to the question and excluded the witness' affirmative answer. Insured was a colored woman, true, but the only proper issue as to her state of health was whether tuberculosis increased the risk of loss in her case. That question the expert witness answered in the affirmative, and, besides, in agreement with the court's judicial knowledge of the subject. Brotherhood of Railway Clerks, etc., v. Riggins (Ala.Sup.) 107 So. 44.

We feel constrained to hold that the court committed reversible error in overruling defendant's motion for a new trial. Pleas 5, 7, 11, and 13 (the sufficiency...

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