National Sec. Ins. Co. of Elba v. Tellis

• Decision Date: 22 April 1958
• Docket Number: 6 Div. 441
• Parties: NATIONAL SECURITY INSURANCE COMPANY OF ELBA, Alabama, v. Ida Mae TELLIS.
• Court: Alabama Court of Appeals

Page 483

104 So.2d 483

39 Ala.App. 455

NATIONAL SECURITY INSURANCE COMPANY OF ELBA, Alabama, v. Ida Mae TELLIS.

6 Div. 441.

Court of Appeals of Alabama.

April 22, 1958.

Rehearing Denied May 27, 1958.

Parsons, Wheeler & Rose, and Malcolm L. Wheeler, Birmingham, for appellant.

Victor Gold and Jas. C. Baldone, Birmingham, for appellee.

PRICE, Judge.

The appellee recovered a verdict of $448 in the Circuit Court of Jefferson County against the appellant, The National Security Insurance Company of Elba, Alabama.

The complaint claims for the alleged breach of an indemnity provision in a life, accident and health policy insuring plaintiff against loss incurred by hospital expenses arising from the illness of her daughter, Rosa M. Harris.

The defendant filed plea in short by consent the general issue, with leave to give in evidence any matter which if well pleaded would be admissible in defense of the action.

The pertinent policy provisions are: (1) 'The company assumes no liability under this policy until the policy is issued by the company and delivered to the insured during the lifetime of the insured and while the insured is in sound health, * * *' (2) 'If by reason of injury or sickness, originating after this policy is issued, the insured shall be necessarily confined within a legally constituted hospital' for a specified period the company will pay certain amounts.

The following stipulation was filed on the trial:

'The parties hereto agree to the following stipulations of fact;

'1. That the policy was issued on May 31, 1954, and was in full force and effect on June 15, 1954, when the insured, Rosa Mae Harris, was hospitalized, and tender of premium is deemed to have been made.

'2. That if the plaintiff is entitled to recover, the correct amount provided for in the said policy would be $8.00 a day for fifty days, and $48.00 miscellaneous medicine, or a total of $448.00.

'3. That the hospital and medical records of the said Rosa Mae Harris at the University Hospital be admitted in evidence.

'4. That the proof of loss forms submitted by the plaintiff to the defendant, as well as the policy and application card, are admitted without further proof.

'5. That the issues to be decided in this case are:

'(a) Was the insured, Rosa Mae Harris, in sound health on May 31, 1954, when the policy of insurance was issued, and

'(b) Did the sickness for which she was hospitalized originate on or before May 31, 1954, the date of the issuance of the policy?

'6. If the insured, Rosa Mae Harris, was in sound health on May 31, 1954, when the policy was issued, and if the sickness for which she was hospitalized originated after May 31, 1954, the date the policy was issued, the verdict should be for the plaintiff.

'7. If the insured, Rosa Mae Harris, was not in sound health on May 31, 1954, when the policy was issued, or if the sickness for which she was hospitalized originated on or before May 31, 1954, your verdict should be for the defendant.

'Victor Gold

'Attorneys for Plaintiff

'Parsons, Wheeler & Rose

'Attorneys for Defendant

'Filed in open court April 24th, 1956.'

Appellant contends that the insured was not in 'sound health' on May 31, 1954, the date of issuance of the policy, and that the illness for which she was hospitalized originated prior to that date.

The burden of proof was upon the defendant to prove these facts. Mutual Sav. Life Ins. Co. v. Alsup, 224 Ala. 111 138 So. 824; National Life & Accident Insurance Co. v. Norris, 27 Ala.App. 153, 167 So. 350; North Carolina Mut. Life Ins. Co. v. Coleman, 248 Ala. 32, 26 So.2d 120.

The insured entered the University Hospital on June 15, 1954. As a witness for the defendant Dr. Bob Hogan stated that he was testifying from the hospital records, which showed that on admission insured gave a history of anorexia, a condition causing loss of appetite, for three or four months prior to entering the hospital, with a resulting weight loss of thirty pounds. One month prior to admission she developed a rash over sun-exposed surfaces of her body, which itched. The rash was still present on admission, but had stopped itching. About three days after the rash first appeared, she developed general weakness and easy fatigue, which became progressively worse over a seven-day period and remained stationary for the next three weeks before admission. At the time she entered the hospital she had to rest after walking half a block and could not elevate her arms over 90 degrees. Two months prior to admission she developed periorbital edema, which was a swelling around the eyes and which persisted. She had had occasional chilliness for a month and since her illness had difficulty in swallowing.

The doctor testified that the history and physical examination were insufficient to provide a specific diagnosis of the cause of insured's condition, therefore, a differential diagnosis was listed. This means that possibly other evidence would have to be gathered. The diagnosis the doctors had in mind at the time were, 'Periarthritis, myasthenia gravis. This is a syndrome.' Periarthritis is a generalized disease involving the arteries. Myasthenia gravis denotes muscle sickness and disorders of the adrenal glands. A note was added to her chart on January 14, 1955, which read, 'believe patient had dermatomositis,' which is a disease involving primarily the skin, subcutaneous tissues and superficial aspects of the muscles.

The doctor testified he did not know what first starts such illness, it is a very rare disease, but about 40 per cent of the patients who have it are females and have a vaginal carcinoma or cancer that doesn't show itself for some months. However, he did not suspect that made up the disability after looking at her; that what he said was that about ten per cent of the females who have that are found later to have a cancer.

Dr. Hogan further testified that according to the history given him by insured the sickness originated three or four months prior to her entering the hospital. But this was a qualified opinion, based entirely on the history, and was not based upon his diagnosis of her condition. The doctor also stated that he had never seen or treated a case similar to insured's. In response to a question relating to the time such illness originates, he said: 'We don't know when it begins.'

Ida Mae Tellis, the plaintiff, testified that Rosa Mae Harris was her daughter and lived with her. She took her to the hospital on June 15, 1954, and a little before she entered her in the hospital she looked a little white, but she did not know how much weight she had lost. The reason she put her in the hospital was that she had a little rash on her arm, but she didn't notice that her eyes were swollen until after she was in the hospital. After she was in the hospital she said she was weak and had chills and fever, but she didn't have all those symptoms three or four months before she went to the hospital. Plaintiff filed statement of the attending physician with the company to get benefits under the policy. The statement was introduced in evidence as defendant's exhibit 1.

Plaintiff further testified insured stayed in the hospital two months and two weeks, and that she died at home on July 31, 1955.

Mrs. Elizabeth Sisson testified insured worked for her as a maid from about January 1954, until the last day of May, or first day or two in June. She noticed no variation in her weight during that period. Insured was seventeen years old and was a very active girl. She cleaned the blinds, waxed floors and often ran from the house to the clothes line and back. She introduced a picture of insured that was taken on April 5, 1954. Insured at first worked one or two days a week, but she worked five or six days a week the entire month of May. She never saw her after that, but a few days after she left she called from the hospital to say she was sick. Insured made no complaint as to any illness, and she noticed no symptoms of any illness.

The 'Sound Health' provision in insurance contracts is a 'warranty' within the meaning of Section 6, Title 28, Code 1940. To avoid the policy the unsound health must be such as to increase the risk of loss. Life Ins. Co. of Virginia v. Newell, 223 Ala. 401, 137 So. 16; North Carolina Mut. Life Ins. Co. v. Coleman, supra.

'There are some diseases which are commonly known to be of such serious consequences that the court will declare that they increase the risk of loss, without making a jury question, but it is generally one for the jury.' Sovereign Camp, W. O. W. v. Harris, 228 Ala. 417, 153 So. 870, 874; Sovereign Camp, W. O. W. v. Sirten, 234 Ala. 421, 175 So. 539; New York Life Ins. Co. v. Zivitz, 243 Ala. 379, 10 So.2d 276, 143 A.L.R. 321.

In 45 C.J.S. Insurance § 893, p. 971, it is stated that clauses like the one we have designated as No. 2 above, are strictly construed against the insurance company and that illness or disability will be...