Metropolitan Life Ins. Co. v. Chambers

• Citation: 226 Ala. 192,146 So. 524
• Decision Date: 27 October 1932
• Docket Number: 6 Div. 90.
• Parties: METROPOLITAN LIFE INS. CO. v. CHAMBERS.
• Court: Alabama Supreme Court

146 So. 524

226 Ala. 192

METROPOLITAN LIFE INS. CO. v. CHAMBERS.

6 Div. 90.

Supreme Court of Alabama

October 27, 1932

Rehearing Denied Jan. 27, 1933.

Further Rehearing Denied March 2, 1933.

Appeal from Circuit Court, Jefferson County, Bessemer Division Gardner Goodwyn, Judge.

Action on policies of life insurance by Virgie Chambers, as administratrix of the estate of Flora G. Hollis, deceased against the Metropolitan Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals under section 7326, Code 1923.

Affirmed.

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

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

THOMAS Justice.

The suit was upon two policies of life insurance in substantial compliance with Code form, and not subject to the demurrer. Section 9531, form 12, Code; Independent Life Ins. Co. v. Carroll, 219 Ala. 79, 121 So. 88; Pence v. Mutual Ben. L. Ins. Co., 180 Ala. 583, 61 So. 817; Sovereign Camp, W. O. W., v. Adams, 204 Ala. 667, 86 So. 737.

Assignments of error not insisted upon within the rule will not be considered. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 So. 158.

The provisions of the policy of life insurance are exhibited by and in special pleas 3 to 9, inclusive. They are as follows:

"'If, (1) the Insured is not alive or is not in sound health on the date hereof; (or if (2) before the date hereof, the Insured has been rejected for insurance by this or by any other company, order or association), or has, within two years before the date hereof, been attended by a physician for any serious disease or complaint, or, before said date, has had any pulmonary disease, or chronic bronchitis or cancer, or disease of the heart, liver or kidneys, then in any such case, the Company may declare this policy void and the liability of the Company in the case of any such declaration or in the case of any claim under this policy, shall be limited to the return of premiums paid on the Policy, except in the case of fraud, in which case all premiums will be forfeited to the Company.'

"And defendant avers that said above quoted provision was breached in that the said insured was not in sound health on the date of the delivery of said policy herein sued on, for that on said date the said insured was suffering with a serious disease or illness, towit: cirrhosis of the liver, splenomegalia, deman of the lungs, ascites or syphilis, which said disease increased the risk of loss. * * *

"And defendant further avers that the insured warranted the above quoted provision of the policy herein sued on to be true, but that the same was not true, in that the insured before and on the date of the policy herein sued on suffered from a serious disease, viz.: cirrhosis of the liver, which fact was material to the risk hereunder and increased the risk of loss. * * *

"And defendant further avers that the matters warranted therein were not true, in that the insured before the date of the policy herein sued on, had a serious disease or illness, namely: cirrhosis of the liver, and on said date was afflicted with and suffering from said disease, which fact was material to the risk hereunder, and the same was made with actual intent to deceive, and the defendant relied thereon and issued said policy, and was deceived thereby. Defendant hereby tenders the plaintiff $14.85, which said sum is the amount of premiums paid on said policy herein sued on."

Such contract stipulations are held valid and enforceable as misrepresentations or warranties, under the meaning of section 8364 of the Code (Brotherhood of Railway, etc., Employees v. Riggins, 214 Ala. 79, 107 So. 44; Miller v. Metropolitan Life Ins. Co., 214 Ala. 4, 106 So. 335; Independent Life Ins. Co. v. Butler, 221 Ala. 501, 129 So. 466; Life Ins. Co. of Va. v. Newell, 223 Ala. 401, 137 So. 16), and, 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). 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. Louisiana State Life Ins. Co. v. Phillips, 223 Ala. 5, 135 So. 841; Southern Life & Health Ins. Co. v. Morgan, 216 Ala. 529, 113 So. 540; Miller v. Metropolitan Life Ins. Co., supra; Brotherhood, etc., v. Riggins, supra; Brown, Adm'r, v. Greenfield Life Association, 172 Mass. 498, 53 N.E. 129; Independent Life Ins. Co. v. Seale, supra; Mutual Life Ins. Co. v. Mankin, 223 Ala. 679, 138 So. 265.

The pleas were drawn under the foregoing or recent authorities. The two classes of pleas are Nos. 3, 4, and 6, challenging the good health of assured when the policy was delivered; and pleas 5, 7, 8, 12, 13, 16, and 17 are that assured had been attended by a physician or treated in a hospital within the time indicated; that such treatment was for a serious disease, material to the risk or increased the risk of loss, and misrepresentation thereof was made with actual intent to deceive; that defendant relied thereon and issued the policies. The plaintiff did not demur to said pleas presenting the two issues of fact. The replications as answers to said pleas were, that, acting through an authorized agent with full knowledge of the facts, defendant "denied liability under said policies on the sole ground that the insured, Flora G. Hollis, was not in sound health on the date of said policy." Thus were the issues of fact as to misrepresentations and warranties-inducements to the issue of the policy-extended to the good health vel non of the insured at the date of the delivery of the policy to and for assured, and previous treatment by physicians and in hospitals.

The effect of our cases is that mere representations made in the application for life insurance as to the health of the insured at the time of application, as to previous diseases, and as to previous attendance by a physician, if material to the risk and made with intent to deceive, will defeat a recovery on a policy so issued, where such misrepresentations are relied on by the assurer of such policy of insurance, and the insurance is induced thereby (Mutual Life Ins. Co. v. Mankin, 223 Ala. 679, 138 So. 265); that, where a plea is of warranty as to the health of the insured and the breach thereof, an insurance application not made a part of the policy is not evidence of warranty. To the contrary is the rule as to misrepresentations. National Life & Accident Ins. Co. v. Edwards, 224 Ala. 698, 141 So. 668; Independent Life Ins. Co. v. Butler, 221 Ala. 501, 129 So. 466.

The argument of appellant's counsel presents for review, the refusal of general affirmative instructions, viz. charges 1, 2, 3, and 4. The court instructed, at the request of defendant in writing (charges Nos. 65 to 70, inclusive), that, if the jury believed the evidence in the case, they must find that cirrhosis of the liver, splenomegalia, dema of the lungs, ascites, syphilis, or delirium tremens, "is a serious disease and increases the risk of loss." And, under such instructions, the jury were required to find that each and all of said diseases were serious and increased the risk of loss, if the evidence in this case relating to any or all of said diseases, and if the assured was afflicted therewith, was believed by the jury.

The rules that obtain as to the giving of affirmative instructions are well understood, and need not be repeated. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. Is there a dispute in the evidence, or a reasonable inference to the contrary, as against the respective defenses presented by said pleas? Was the insured alive and in sound health on the day the insurance was effected and the policy delivered, May 19, 1930? Appellant maintains by its evidence and pleas that such was not the fact, and for that purpose introduced as witnesses Dr. Nicholls, Dr. Parsons, and Dr. Denson, And there are reasonable inferences in the evidence of Drs Denson and Parsons that would present a conflict and question for the jury on sound health vel non on the date the policy was issued and delivered. They differed as to the result of the Wasserman test, one saying it was positive, and the other saying it was negative. So was there conflict, or reasonable tendency thereof, in Dr. Parsons' testimony that "it would not take two or three months to develop that condition of acute alcoholism, hypertrophis cirrhosis of the liver, yes, sir, to where you...