North Carolina Mut. Life Ins. Co. v. Coleman, 6 Div. 239.

• Decision Date: 05 February 1946
• Docket Number: 6 Div. 239.
• Citation: 26 So.2d 114,32 Ala.App. 287
• Parties: NORTH CAROLINA MUT. LIFE INS. CO. v. COLEMAN.
• Court: Alabama Court of Appeals

26 So.2d 114

32 Ala.App. 287

NORTH CAROLINA MUT. LIFE INS. CO. v. COLEMAN.

6 Div. 239.

Alabama Court of Appeals

February 5, 1946

Rehearing Denied March 5, 1946.

Jackson Rives & Pettus and C. E. Wilder, all of Birmingham, for appellant.

Gibson & Hewitt, of Birmingham, for appellee.

The following charges were given for plaintiff:

No 1. I charge you that 'sound health' means freedom from serious illness or disability which has impaired the constitution, or left in its wake some organic or chronic effect undermining the general health.

No. 2. I charge you that the disability of plaintiff existing at the time of the delivery of the policy would not constitute a breach of warranty as to his sound health at such time, unless the disability was such as affected his general soundness of health.

No. 3. I charge you that 'sound health' as used in the clause of the policy exempting the insurer from liability unless insured is in 'sound health' on date of delivery of the policy does not mean absolute freedom from bodily infirmity or tendency to disease, or temporary condition without probable hearing on insured's life, but means absence of disease and injury and disability that has direct tendency to shorten life or to cause disability.

No. 4. I charge you that the plaintiff was in sound health at the time of the delivery of the policy unless at such time he was affected with some disease or injury or disability of a character affecting the general soundness of his health which materially increased the risk of loss.

No. 5. I charge you, gentlemen of the jury, that for a person to be in 'good health' within the meaning of the law of insurance does not mean that he is in perfect health, but means that he is free of any disease or ailment or injury that affects

the general soundness or healthfulness of the system.

The following charges were refused to defendant:

3. The Court charges the jury that if at the time of the delivery of the policy of insurance to the plaintiff the plaintiff was disabled to the extent that he could not walk without the aid of crutches, he was not in sound health.

4A. The Court charges the jury that if you are reasonably satisfied from the evidence that the plaintiff was disabled from physical and bodily injuries received by him in an accident in which his back was broken and as a result of such injuries was unable to walk without the aid of crutches at the time the policy was delivered to him, he was not in sound health and would not be entitled to recover a verdict in this case and your verdict should be for the defendant.

11. The Court charges you, Gentlemen of the Jury, that before the plaintiff would be entitled to recover in this case he must have been in sound health at the time the policy was delivered to him, and I further charge you that if plaintiff was so disabled and incapacitated by reason of and resulting from physical and bodily injuries received by him shortly prior thereto, in a mine accident wherein his back was broken and wherein he received other physical injuries, that he was unable to walk except by the aid of crutches, and you are reasonably satisfied from the evidence that these facts are true, then I charge you the plaintiff was not in sound health within the legal meaning of clause seven (7) of the policy of insurance sued on, and your verdict should be for the defendant.

10. The Court charges the jury that the policy of insurance provides in substance that 'no liability is assumed by the company prior to the date hereof, nor unless on said date, and on delivery of this policy the insured is alive and in sound health' is a legal and valid provision of said contract of insurance which would preclude a recovery by the plaintiff in this case if the plaintiff was not in sound health at the time he made application for and received delivery of said policy; and I further charge you, Gentlemen of the jury, that if you are reasonably satisfied from the evidence in this case that the plaintiff suffering from physical and bodily injuries and infirmities resulting from an accident he received in a mine wherein his back had recently been broken and as a result of which he was unable to walk without the aid of crutches at the time the policy was delivered to him, he was not in sound health as contemplated by said clause in said policy, and your verdict should be for the defendant.

6(assignment 14). The Court charges the Jury that if the defendant, before the filing of this suit in this cause, tendered to plaintiff all money due plaintiff as premiums collected by defendant with interest thereon and that defendant has kept said tender good in court since said suit was filed, then your verdict should be for the defendant.

HARWOOD, Judge.

The appellee, Johnnie Coleman, brought suit against the North Carolina Mutual Life Insurance Company, the appellant, on a health and accident policy of insurance issued by said company on March 20, 1944, pursuant to the written application of appellee made on March 6, 1944. The complaint as amended is substantially in Code form and the trial court properly overruled the demurrers thereto. Appellant then pleaded in short by consent the general issue, with leave to give in evidence any matter which if well pleaded would be admissible in defense, including plea of tender of premiums.

The undisputed evidence shows that appellant, a miner, aged 31 had been injured about the head in a mine accident, and was hospitalized therefor from March 25 to April 3, 1942.

Again on December 1, 1943 appellee was involved in a mine accident and was hospitalized from that date until December 24, 1943. At this time the diagnosis of his injuries was: 'Fracture second lumber vertebra. Contusion right hip and chest. Patient injured in Lewisburg Mines. Caught in car between armature and side.'

According to appellee's testimony he used crutches from the time of his discharge until about June, and then used a cane until he returned to work in February, 1945, having worked continuously since that date.

It is further undisputed that when appellee signed the application for the policy on March 6, 1944, he was visiting in a friend's home, when Lula Menefee, an agent of appellant, came there on other business.

When the policy was delivered to appellee he was, according to his testimony, sitting in a chair on his porch, while Lula Menefee testified he was sitting in his automobile.

Lula Menefee testified appellant approached her concerning the application, and that at that time she did not know that appellee had suffered a broken back. This is denied by appellee who testified that he had known Lula Menefee for over ten years, and would see her when she was around the mines collecting insurance premiums, before and after he was on crutches. That every time he saw her after the accident she would ask him how he was getting along, and that at the time of signing the application he had his crutches with him.

In the application appellee certified: 'I hereby certify I am free from disease and that all statements made above and in part A are true, that one of which being false, forfeits my rights to receive benefits under this contract.'

The application was not by reference made a part of the policy contract. Under such conditions the statements in the application are not considered warranties, but they may be received as evidence of such representations in support of a plea of fraud and deceit. Independent Life Insurance Company v. Butler, 221 Ala. 501, 129 So. 466.

There is in the policy itself the following provisions:

'Risks Not Covered

'(b) Sickness or accident resulting from injuries received, or diseases contracted before the delivery of this policy.

'No liability is assumed by the Company prior to the date hereof, nor unless on said date, and on the delivery of this policy the assured is alive and in sound health, and the premiums paid.'

The latter provision is in legal effect a warranty. Reliance Life Insurance Company v. Sneed, 217 Ala. 669, 117 So. 307.

Premiums on the policy were paid to and including November 6, 1944.

About September 17, 1944, appellee began to suffer excruciating pain in the region of his stomach. He was hospitalized because of this condition on September 21, 1944 and on October 4, 1944 was operated on by Dr. B. S. Lester. The operation disclosed that appellee's disability resulted from an abscess of the omentum. Surgical relief of this condition was effected, and after two weeks in the hospital appellee left the hospital and was confined to bed at his home for two additional weeks thereafter.

Appellee duly filed claims with appellant for payment of benefits he alleged to be due under the policy. In the 'Certificate of Attending Physician,' supporting the claims, five of which certificates appear in the record, it is noted that Dr. Lester in answer to question 6 as to how long prior to the date of the certificate the disease began stated 'undetermined' on three of the certificates, 'don't know' on one, and '9-21-44' on another. In answer to question 12 'to what do you attribute the origin of the disease' he answered 'don't know,' and 'undetermined' on two of the certificates, while the question was not answered on the remaining three. In answer to question 16, 'Is the illness a primary condition' he answered 'yes' on three of the certificates, leaving the space blank on the remaining two.

The appellee made out his prima facie case by introduction of the policy, proof of the happening of the event covered by the policy, and notice and proof thereof as provided by the policy. Pilot Life Insurance Company...