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

• Decision Date: 05 November 1931
• Docket Number: 7 Div. 59.
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. MANKIN.
• Court: Alabama Supreme Court

138 So. 265

223 Ala. 679

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

7 Div. 59.

Supreme Court of Alabama

November 5, 1931

Rehearing Denied Dec. 17, 1931.

Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.

Action on a policy of life insurance by Beulah B. Mankin against the Mutual Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

O. R Hood, of Gadsden, and Bradley, Baldwin, All & White, of Birmingham, for appellant.

Culli Hunt & Culli, of Gadsden, for appellee.

BROWN J.

This is an action of assumpsit by the beneficiary named in a policy of life insurance issued by the defendant on June 7, 1929 insuring the life of Harry L. Mankin, who died on the 19th of December, 1929.

The defendant interposed two special defenses, presented in varying forms in six special pleas: First, that the insured in his application for the insurance which was made a part of the policy, represented that he had had no illnesses, diseases, injuries, or surgical operations since childhood, which representation was untrue, in that "said insured, prior to the date of said application" and since childhood, was "affected with, and, within said time, had a disease, namely syphilis, which fact was known by insured when said statements in said application were made."

As to this defense some of the pleas alleged that said false statements increased defendant's risk of loss under said policy; others alleged that said representations were made with actual intent to deceive, and did deceive, the defendant in that in issuing the policy it relied thereon; others alleged, in the alternative, that said false representations were made with actual intent to deceive the defendant, and did deceive the defendant, into issuing said policy, or said statements or answers increased the defendant's risk of loss under said policy.

In the ninth plea as last amended, it was alleged that in the medical examination, embodied in the application and made a part of the policy, insured was asked: "16. What illnesses, diseases, injuries and surgical operations have you had since childhood?" To which question the said insured made the following answer: "None."

The defendant avers that said answer was untrue, in this: "The insured, prior to the date of said application and since his childhood, and continuing from towit, 1920, until his death, was affected with and had a disease, namely syphilis, and that said answer in said application was made by insured with actual intent to deceive, and did deceive defendant and/or increased the defendant's risk of loss."

The other defense, asserted by the defendant's special plea 8, is predicated on a stipulation in the application for the policy, "that the proposed policy shall not take effect unless and until the first premium shall have been paid during my continuance in good health, and unless also the policy shall have been delivered to and received by me during my continuance in good health"-this plea averring that said policy was delivered to and received by the insured "on to wit, the 7th day of June, 1929, and that between the date of the application and the date of the delivery of said policy and the receipt of the same by the insured, the insured did not continue in good health in this: that between said dates the insured was ill and was affected with syphilis, which fact was unknown to the defendant. And defendant avers that said fact increased its risk under the policy." (Italics supplied.)

While there is no positive evidence that the insured had syphilis at the time the application was made, or at the delivery of the policy to him, the defendant offered evidence that he consulted one or more physicians in about the year 1920, who by the aid of the Wasserman test diagnosed his trouble as syphilis, and...