National Life & Accident Ins. Co. v. Puckett

• Decision Date: 13 October 1927
• Docket Number: 6 Div. 871
• Court: Alabama Supreme Court
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. PUCKETT.

115 So. 12

217 Ala. 110

NATIONAL LIFE & ACCIDENT INS. CO. v. PUCKETT.

6 Div. 871

Supreme Court of Alabama

October 13, 1927

Rehearing Denied Jan. 12, 1928

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Action on a policy of life insurance by Josephine Puckett against the National Life & Accident Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Mathews & Mathews, of Bessemer, for appellant.

Huey &amp Welch, of Bessemer, for appellee.

SOMERVILLE J.

The complaint follows the Code form, and must be held sufficient as against any ground of demurrer. Section 9531, form 12 Code 1923. It should be noted that the form provided by former Codes has been amended by the omission of averment as to the term of the insurance.

The defense insisted upon for the invalidation of the policy is that at the time it was issued and delivered to the insured he was not in sound health, but was in fact afflicted with cancer of the prostate gland, which caused his death about four months later. If the insured had that disease at that time, then, as a matter of law, he was not in "sound health," and the condition imposed upon the operation of the policy was violated.

In the proofs of death presented by the beneficiary to the company Dr. Stickley, who attended the insured during his last illness and until his death on November 11, 1923, stated that he first visited him on October 21, 1923; that the cause of his death was "general asthenia carcinoma of prostate"; that the duration of the disease, from the history given, was twenty-one days; and that its duration, from the physician's "personal knowledge and belief," was one year.

Such statements are to be taken as prima facie true, as against the beneficiary, and, unless contradicted or avoided by competent evidence, they are conclusive. Cotton States Life Ins. Co. v. Crosier (Ala.Sup.) 113 So. 615.

These statements by Dr. Stickley have not been contradicted or avoided, but the trouble is they are not in themselves clear and definite to the conclusion insisted upon by appellant.

General asthenia is defined in Webster's New International Dictionary as "want or loss of strength, debility, diminution of the vital forces." Defendant's medical witness, Dr. Williamson, testified that general asthenia is a general breaking down or giving way of the system. Manifestly, it is simply a pathological condition resulting from any specific malady sufficiently serious and advanced to produce it.

If Dr Stickley had stated that the assured died from cancer of the prostate gland alone, and that in his opinion that disease had existed for a year previous, or that it had its inception before the...