Mutual Ben. Life Ins. Co. v. Lehman

• Decision Date: 28 June 1902
• Citation: 132 Ala. 640,32 So. 733
• Parties: MUTUAL BEN. LIFE INS. CO. v. LEHMAN ET AL.
• Court: Alabama Supreme Court

32 So. 733

132 Ala. 640

MUTUAL BEN. LIFE INS. CO. v. LEHMAN ET AL.

Supreme Court of Alabama

June 28, 1902

Appeal from chancery court, Jefferson county; John C. Carmichael Chancellor.

Bill by Charles T. Lehman and others against the Mutual Benefit Life Insurance Company. From decree holding plea insufficient defendant appeals. Affirmed.

A Latady, for appellant.

Jas. A Mitchell, John W. Tomlinson, and Henry Kirke White, for appellees.

McCLELLAN C.J.

This bill is prosecuted by Lehman and others, creditors of the estate of George T. Winton, deceased, to enforce the payment by the insurance company of a policy of insurance issued by it on the life of the debtor. The respondent pleaded, in bar of the relief sought; that Winton made an application for said insurance. That in his application is this provision "I agree that the answers given herewith to the questions of the agent or examiner, which I declare and warrant to be true, shall be the basis of my contract with the company;" and "respondent pleads * * * breach of warranties which formed the basis of said contract, as follows: (1) That in answer to the question, 'Have you any disease or disorders?'--one of the questions the answer to which the said George T. Winton warranted to be true,--the said Winton answered, 'No.' And this respondent says that said answer was untrue, in that, as respondent avers, that said Winton, at the time he made the answer set out, suffered from disorder of the kidneys, dyspepsia, headache, and muscular pains. (2) That in answer to the question, 'How often, and for what, have you sought medical advice during the past seven years? Dates of each, duration, physician consulted?'--one of the questions the answer to which said Winton warranted to be true,--the said Winton answered: 'Once for la grippe, in February, 1891; Dr. J. E. Griggs, Birmingham, Alabama. Once for mumps, in June, 1893; Dr. T. L. Robertson, and that the disorder continued in each instance for one week.' And this respondent says that the answers so given to the question above set out were untrue, in this: that at the time of making said answers the said Winton knew that in the fall or winter of 1894 he had consulted physicians for disorders from which he suffered, and that he likewise sought medical advice in the spring or summer of 1895. (3) That in answer to the question, 'Are you, or have you been, subject to dyspepsia? Dates, duration, and severity?'--one of the questions the answer to which the said Winton warranted to be true,--he answered: 'Yes, in February, 1880. Three months; not very severe. Was never confined to bed, and able to attend to business.' And this respondent avers that the answer so given to the question herein set out was untrue, for that respondent says that at the time said Winton made the answer averred to be untrue he knew that in the fall or winter of 1894 he suffered from dyspepsia, and that in the spring or summer of 1895 he had to leave the city of Birmingham on account of his state of health, and that he remained away at mineral springs for two weeks under the advice of a physician; that he was, just before leaving for the springs, suffering from an attack of dyspepsia, headaches, muscular pains, and scanty urine, and that he had been confined to his bed for several days, and that during the year preceding his death he had received sundry prescriptions from his physician for these complaints." This plea being set down for hearing on its sufficiency, the chancellor held it insufficient on grounds clearly stated in his opinion, which we adopt: "The plea, as amended, of the Mutual Benefit Life Insurance Company, attempts to set up some breaches of warranties alleged to have been made by the decedent, George Winton. The contention that the plea does not disclose any breach of the alleged warranties was carefully argued at the bar upon the trial of the sufficiency of the plea. I shall not go into that question, as I think the plea is to be held insufficient upon another ground, anterior in point of the development of the trial to the one argued. The plea does not disclose any warranties made by Winton. For aught that appears in the plea, the statements alleged to have been made by Winton were mere representations. It is only stated by way of recital, and not by positive averment, that even the representations were made. The plea does not allege that the warranties were in writing, that they were incorporated into the contract of insurance, or that they...