Metropolitan Life Ins. Co. v. Goodman

• Decision Date: 13 January 1916
• Docket Number: 3 Div. 193
• Citation: 71 So. 409,196 Ala. 304
• Parties: METROPOLITAN LIFE INS. CO. v. GOODMAN.
• Court: Alabama Supreme Court

71 So. 409

196 Ala. 304

METROPOLITAN LIFE INS. CO. v. GOODMAN.

3 Div. 193

Supreme Court of Alabama

January 13, 1916

Rehearing Denied March 23, 1916

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by Nancy E. Goodman against the Metropolitan Life Insurance Company to recover upon the policy issued on the life of Louis M. Goodman under which she was the beneficiary. Judgment for plaintiff, and defendant appeals. Transferred from the Court of Appeals under section 6, Acts of 1911, p 449. Affirmed.

The pleas are as follows:

(6) The policy sued on contained the following condition "Unless otherwise stated in the blank space below, in a waiver signed by the secretary, this policy is void if the insured, before its date, has been attended by the physician for any serious disease or complaint." And defendant says there is no statement in said policy signed by said secretary waiving such condition; that before the date of said policy the insured had been attended by a physician for a serious disease or complaint, to wit syphilis, which increased the risk.

(7) Same as 6.

(8) Same as 6, except the disease named is gonorrhea instead of syphilis, named in plea 6.

(9) Same as 8.

(15) Defendant for further plea says the insured under the policy insured on had syphilis, to wit, from April, 1907, and continuing for about two years and a half thereafter, and was treated for such disease by Dr. A.H. Montgomery, and when said insured applied for policy of insurance sued on said insured suppressed the fact that he had had the disease above named and had been treated therefor by a physician for the time averred, and defendant says this plea is accompanied by payment into the the court of the sum of $22.40, premiums received under said policy.

(13) Same as 6, and adds that insured had said disease when so attended, and said disease increased the risk of loss. This is also accompanied by a plea of tender.

(14) Same as 13.

Steiner Crum & Weil, of Montgomery, for appellant.

Letcher McCord & Harold, of Montgomery, for appellee.

GARDNER J.

This is the second appeal in this cause. For a report of the former appeal, see Metropolitan Life Ins. Co. v. Goodman, 10 Ala.App. 446, 65 So. 449. The first assignment of error insisted on by counsel relates to the action of the court in sustaining demurrers to pleas 6, 7, 8, and 9. These pleas were given consideration on the former appeal, but the assignments of demurrer sustained by the court below were not then presented, and the questions now argued were not, therefore, called to the attention of that court.

The provision in the policy held by the Court of Appeals to be a warranty, and which constituted much of the substance of the said pleas, was as follows:

"This policy is void if the insured before its date had been attended by a physician for any serious disease or complaint."

Section 4572 of the Code reads 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."

] It is therefore to be noted that under this statute a policy cannot be defeated by the making of a warranty unless the matter misrepresented increased the risk of loss. The court below held the plea subject to demurrer because it did not appear therein that the deceased was afflicted with the disease mentioned in the pleas as having increased the risk, at the time when he was attended by a physician. Counsel for appellant insist that it was sufficient for said pleas to have averred merely that the insured was attended for a serious disease, and that this averment was entirely sufficient without any additional averment to the effect that the insured had such disease at the time he was being attended by a physician. To quote from their brief:

"The provision, it will be noted, is not that the insured did not have a serious disease or complaint, but that he had not been attended by a physician for a serious disease or complaint."

We cannot agree in this insistence. As said by the Court of Appeals on the former appeal of this case:

"The statute is to be liberally construed so as to advance the legislative intent and suppress the mischief aimed at."

The construction of the provision of the policy and of the above-quoted statute, which must be read in connection therewith, contended for by counsel for appellant, would by no means meet the standard of liberal construction, but, on the contrary, it is too narrow to meet with the favor of the court. Indeed, the provision of the policy itself may be construed, at least inferentially, to concede that the insured had a serious disease for which a physician was attending him. In Mutual Life Ins. Co. v. Allen, 174 Ala. 511, 518, 56 So. 568, 570, is the following:

"The fact, standing alone, that

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