National Life Ins. Co. of America v. Hedgecoth

• Decision Date: 20 November 1917
• Docket Number: 6 Div. 216
• Parties: NATIONAL LIFE INS. CO. OF AMERICA v. HEDGECOTH.
• Court: Alabama Court of Appeals

77 So. 422

16 Ala.App. 272

NATIONAL LIFE INS. CO. OF AMERICA v. HEDGECOTH.

6 Div. 216

Court of Appeals of Alabama

November 20, 1917

Rehearing Denied Dec. 18, 1917

Appeal from City Court of Bessemer; J.C.B. Gwin, Judge.

Action by Nathan O. Hedgecoth against the National Life Insurance Company of America. Judgment for plaintiff, and defendant appeals. Affirmed.

Certiorari denied 77 So. 1000.

Plaintiff sued defendant for the amount covered by the policy due him by reason of confinement on account of sickness during the months of December, 1914, and January and February, 1915. Plea A is that in the application for the policy the following provision occurs:

"I hereby apply to the National Life Insurance Company *** for a policy to be based upon the following representation of facts."

And defendant avers that one of the representations made in said application was that insured had never had or been affected with any kind of heart disease or kidney trouble or kidney disease, and defendant avers that this was a material representation, and was fraudulently made by defendant, in order to procure the policy here sued on, and such misrepresentation was made with actual intent to deceive, and was false, and the matter misrepresented increased the risk of loss, wherefore defendant is not indebted to plaintiff in any sum, having paid into court all premiums, and the policy for which was paid by plaintiff. Pleas 2, 3, 7, 8, and B set these same matters up by way of misrepresentations and warranties, and that same formed a part of the policy contract. The matters set up in plea 4 was that insured was not disabled from performing all his duties for seven consecutive days, as is required by the provisions of the policy.

(5) The alleged disability for which plaintiff seeks to recover was contracted and begun before the policy became effective.

(6) Notice of the alleged disability for which plaintiff seeks to recover was not given within the time required by the terms and provisions of the policy contract sued on wherefore plaintiff is estopped to now claim indemnity thereunder.

(C) The alleged disability was not caused solely by disease or illness which began during the life of the policy, or after 30 days from the date thereof, but that the alleged illness for which indemnity is claimed had its incipiency long before the policy was issued.

In his closing argument to the jury counsel stated to the jury that defendant had scoured the records of every doctor's office in the county to get something on plaintiff, and also plaintiff was as sweet as a ten-cent bottle of Hoyt's Cologne as long as he was paying in, but as soon as he got sick he was as offensive as a polecat to the company. The following is the portion of the court's oral charge excepted to:

If the jury is reasonably satisfied from the evidence of every material averment of plea A, if you believe every material fact set up in the plea is true, and it has been established from the evidence, then this plaintiff could not recover anything back except the actual money he paid for the premium.

Mathews & Mathews, of Bessemer, for appellant.

Goodwyn & Ross, of Bessemer, for appellee.

BROWN P.J.

The appellant does not seem to seriously treat the assignment of error predicated on the action of the court in overruling the demurrers to the complaint. All that is said with reference thereto is "every material fact which constitutes the ground of plaintiff's action must be alleged in his declaration when the complaint does not follow the code form." This statement does not undertake to point out wherein the complaint fails to meet these requirements, nor do we find any such defect.

The defendant's...