Mutual Life Ins. Co. of New York v. Witte

• Decision Date: 07 November 1914
• Docket Number: 508
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. WITTE.
• Court: Alabama Supreme Court

67 So. 263

190 Ala. 327

MUTUAL LIFE INS. CO. OF NEW YORK v. WITTE.

No. 508

Supreme Court of Alabama

November 7, 1914

Rehearing Denied Dec. 17, 1914

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Action by Marie Witte against the Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Tillman Bradley & Morrow, of Birmingham, and B.G. Farmer, of Dothan for appellant.

W.L Lee, of Columbia, for appellee.

MAYFIELD J.

The action is on a life insurance policy. The insurance company interposed 18 pleas--the general issue and 17 special pleas. The special pleas were of two classes; one class setting up false and fraudulent representations by the insured, made with the intent to deceive, in obtaining the policy, and the second class setting up false representations by the insured in obtaining the policy sued on, which representations, being false, increased the risk.

The pleas were thus confessedly framed under each of the two alternatives contained in section 4572 of the Code, which section 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."

A great number of pleas, similar to the ones in question, were construed with reference to this and other sections of the Code in the cases of Insurance Co. v. Allen, 174 Ala. 517, 56 So. 568, and Insurance Co. v. Gee, 171 Ala. 435, 55 So. 166. It is therefore unnecessary to restate the rules as to the sufficiency of such pleas in cases like this; it being both apparent and conceded that the pleas were proved with special reference to the pleas and the opinions and decisions in those two cases.

The trial court sustained demurrers to pleas 2, 6, 10, 12, and 14, and overruled demurrers to pleas 3, 4, 5, 7, 8, 9, 11, 13, 15, 17, and 18.

There was no error in sustaining demurrer to any one of the pleas. They were each defective under the rules declared in Allen's Case, supra, and Gee's Case, supra. Each was bad for one or more of the following reasons: Being too indefinite and uncertain in averment to show wherein the alleged representations were false. No definite and material issue of fact could be taken thereon. For example, some alleged that the insured represented that his health was good from infancy, when in fact it was not always good, and he was in failing health due to a disease unknown to the defendant; and others, after this, alleging that insured had a disease which was unknown, yet averring that the unknown disease increased the risk. Such pleas, of course, were self-contradictory. If a disease was unknown, how could it be known to be one which increased the risk? How was it possible for the plaintiff to disprove this plea, except to prove that the insured never, in his lifetime, had any disease known to the nomenclature of medical science? Courts will not enter upon such inquiries.

An important requisite in all pleading is certainty. The matter pleaded ought to be clearly and distinctly stated, so that it may be fully understood by the adverse party, by counsel, and by the jury and the judges.

There was no error in sustaining demurrer to any of the other pleas, which did not contain the defect as to uncertainty. They were each bad under the rules declared in Allen's and Gee's Cases, supra. Moreover, if there could be said to be any technical error in any one of the rulings on these pleas, it is made to appear beyond doubt that no possible injury did or could result from such ruling, for the reason that the other pleas, as to which the demurrers were overruled, set up the identical defense attempted to be set up in these pleas. All the legitimate proof which could have been offered under any one of these pleas, as to which demurrers were sustained, could have been offered under one or another of the numerous pleas as to which demurrers were overruled.

There was no error in refusing the general affirmative charge to the defendant, upon the whole case, or as to any one of the many pleas. The mere fact that insured died of...