National Life & Accident Ins. Co. v. Baker

• Decision Date: 23 March 1933
• Docket Number: 4 Div. 696.
• Citation: 226 Ala. 501,147 So. 427
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. BAKER.
• Court: Alabama Supreme Court

147 So. 427

226 Ala. 501

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

4 Div. 696.

Supreme Court of Alabama

March 23, 1933

Rehearing Denied April 20, 1933.

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Action on a policy of life insurance by Lula Baker against the National Life & Accident Insurance Company of Nashville Tenn. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals.

Affirmed.

John S Tilley, of Montgomery, for appellant.

T. S Frazer, of Union Springs, for appellee.

FOSTER Justice.

The suit is upon a policy of life insurance.

Special plea 2 alleged that the policy provided that no liability is assumed unless at the time when it is delivered the applicant is in sound health; that he was not then in sound health, but had syphilis, which increased the risk of loss. Special pleas 3, 4, and 7 alleged that the policy provides that no benefits shall be paid for death resulting from venereal diseases, and that his death resulted from syphilis, a venereal disease. Special plea 5 alleged that in his application he represented that he had received no medical or surgical attention in the last five years; whereas during the preceding year he had been treated by a physician for syphilis, which increased the risk of loss. Special pleas 6 and 8 alleged that in taking the application insured represented that he had never had syphilis; that the representation was false and fraudulent for that he had within the preceding year been treated for such disease, which increased the risk of loss.

No question was raised as to the sufficiency of the pleas, and there was no replication to them. None of them stated that there was "an actual intent to deceive," but they relied upon the statement in each plea that the misrepresentations related to matter which increased the risk of loss. Section 8364, Code. So that the sufficiency of proof in respect to each plea must be measured by that form of the issue.

Since the policy did contain the provisions mentioned in the pleas, the first question is whether there was sufficient evidence to submit them to the jury, and, since the verdict was for plaintiff, whether, on motion for a new trial, it was contrary to the great weight of the evidence.

On the issue made by pleas 3, 4, and 7, we note that without dispute the evidence shows that insured died of a hemorrhage, which was a symptom; that it was either caused by alcoholism or syphilis, or both combined. The jury could have found from the evidence that it was caused by one or the other of such conditions, or that syphilis was a material contributing cause. But there was no occasion for the affirmative charge, and it is not necessary to discuss the evidence in this connection.

As to plea 5, the evidence showed without dispute that insured had been treated for the disease named in it contrary to the statements in the application. So that a material issue on that plea was whether the fact of such treatment increased the risk of loss as alleged in it. This court has held that we will not take judicial knowledge of that fact. La. State Life Ins. Co. v. Phillips, 223 Ala. 5, 135 So. 841; Mutual Life Ins. Co. v. Mankin, 223 Ala. 679, 138 So. 265. In this case, as in them, the proof showed that there was a sure test of the existence of the disease, and a treatment which completely cures in most cases when properly applied, in its early stages.

The application was dated September 29, 1930. The evidence showed that in February before a test was made and pronounced positive. He was a meat cutter in a market. The test was required by county health authorities. He was immediately suspended from his work and treatment given by a skillful physician, who discharged him in June, though there is some confusion in the dates, whether it was then or on September 29th. But he was at his work again on that day, discharged by his physician as cured, and by permission of the health officer, though no test was made. In February, 1931, he died, after having developed alcoholism by almost continuous use of liquor since then, and without any further test for syphilis, and while continuously on his job in the meantime as a meat cutter. The doctors said that the hemorrhage was caused by syphilis or alcoholism. They made no test to know for sure.

In the two cases cited above, the question, as here, was whether it increased the risk of loss. Since the jury could find upon a reasonable theory of the evidence that he had been cured of it by September 29th, and did not increase the risk of loss when he signed the application for insurance, we cannot hold that the affirmative charge was due defendant on...