Metropolitan Life Ins. Co. v. Dixon

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, Justice.
• Citation: Metropolitan Life Ins. Co. v. Dixon, 226 Ala. 603, 148 So. 121 (Ala. 1933)
• Decision Date: 13 April 1933
• Docket Number: 6 Div. 309.
• Parties: METROPOLITAN LIFE INS. CO. v. DIXON.

148 So. 121

226 Ala. 603

METROPOLITAN LIFE INS. CO. v. DIXON.

6 Div. 309.

Supreme Court of Alabama

April 13, 1933

Rehearing Denied May 18, 1933.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action on a policy of life insurance by William H. Dixon, as administrator of the estate of Maggie Dixon, deceased against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

Cabaniss & Johnston, of Birmingham, and Huey, Welch & Stone, of Bessemer, for appellant.

Ross Bumgardner, Ross & Ross, of Birmingham, for appellee.

GARDNER Justice.

Plaintiff is the named beneficiary in the insurance policy of date June 15, 1931, upon which this suit is founded, insuring the life of his wife, Maggie Dixon, who died on November 19, 1931. The attending physicians at her last illness give the cause of her death as chronic myocarditis and nephritis; the former an enlargement of the heart, and the latter a diseased condition of the kidneys, commonly called "Bright's Disease." Both are serious diseases, which will shorten life, and the doctors treating her state they will kill and are considered incurable. There was no proof to the contrary.

Dr Gwin, defendant's examining physician, made what he calls a superficial examination, and did not discover the presence of these diseases, but states he made no examination of the kidneys, and did not know whether or not insured at the time of the issuance of the policy had nephritis. "I could not have told whether or not she was suffering with it (nephritis) at the time I examined her in May, 1931, not from the examination I made." And as to the heart trouble, he states he could have discovered it in a late stage, but "could not in an early stage."

It is without dispute that insured was a patient in the Bessemer General Hospital from January 4, 1930, to January 15, 1930, under the treatment of Dr. Colquitt, who testifies that she was suffering from chronic myocarditis and chronic interstitial nephritis and also hypertension, commonly called high blood pressure, which, it may be added, was also one of the symptoms at her last sickness.

The testimony of plaintiff's witnesses is corroborative of insured's treatment at the hospital, as above indicated, though they were not informed as to the nature of her illness, and they testify she appeared to be in good health and did her usual domestic work after returning from the hospital. When insured left the hospital, Dr. Colquitt states she was improved, but not cured, and Dr. Waldrop, also one of the insured's attending physicians at her last illness, states that, if insured had those diseases in January, 1930, "and that condition also existed in November 1931, * * * it is reasonable to suppose that she had it right straight along, in my opinion."

As to whether or not, considering Dr. Gwin's testimony in connection with all other proof, a jury question was presented as to insured's good health when the policy was delivered, it is unnecessary to decide, for the reason that, in our opinion, under the issues presented on pleas 8, 10, and 14 (all other pleas aside and unconsidered), the defendant was clearly entitled to the affirmative charge requested.

Plea 14 deals with the representations in the application to the effect that insured had never been under treatment in a hospital, and pleas 8 and 10 with provisions in the policy limiting liability to a return of the premiums in the event insured has been within two years next preceding afflicted with disease of the heart or kidney (and) or treated by physicians for any serious disease, as is set forth in plea 10. No objections were interposed to these pleas and issue taken thereon. They were proved without dispute.

Insured had in January, 1930, been treated in the hospital for serious heart and kidney trouble, each disease tending to shorten life. As said in Brotherhood of Railway, etc., v Riggins, 214 Ala....