Penn Mut. Life Ins. Co. v. Cobbs

• Decision Date: 14 May 1929
• Docket Number: 6 Div. 447.
• Parties: PENN MUT. LIFE INS. CO. v. COBBS.
• Court: Alabama Court of Appeals

123 So. 94

23 Ala.App. 205

PENN MUT. LIFE INS. CO. v. COBBS.

6 Div. 447.

Court of Appeals of Alabama

May 14, 1929

Rehearing Denied June 18, 1929.

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action on a policy of life insurance by Susan B. Cobbs against the Penn Mutual Life Insurance Company. Judgment for plaintiff and defendant appeals. Reversed and remanded.

Percy, Benners & Burr, of Birmingham, for appellant.

Black &amp Fort and G. Ernest Jones, all of Birmingham, and W. T Seibels and Weil, Stakely & Cater, all of Montgomery, for appellee.

SAMFORD J.

For convenience, we adopt the clear and concise statement of the case made by appellant, and in discussing the rulings of the court we follow the outline suggested in its brief.

The complaint is in Code form for the recovery of past-due monthly payments on a policy of insurance, in the principal sum of $10,000 insuring the life of Herbert L. Cobbs, a son of plaintiff.

Appellant, hereinafterwards referred to as defendant, in addition to the general issue, filed special pleas; these pleas as involved in this appeal are No. 3 and pleas 9 to 13, inclusive. Plea No. 3, with appropriate averment, relied upon the following provision of the policy: "Suicide. If the insured whether sane or insane shall commit suicide within one year from the date of issue of this policy, the liability of the company shall be limited to the amount of the premium paid hereon." The plea was accompanied by tender in court of the amount due to plaintiff under the terms of the policy. There was a joinder of issue on this plea, and the sole question raised under the plea was a question of fact as to whether or not Cobbs committed suicide.

Pleas 9 to 13, inclusive, aver that Cobbs made a written application to the defendant for the issuance of the policy of insurance sued upon; that said application, over the signature of the said Cobbs, contained the following statement: "My statements and answers to the questions and answers printed above, and my statements and answers made and given to the company's medical examiner are full, complete and true; upon them I base my application for insurance and agree that they shall be regarded as a part of the contract if, and when, issued." The pleas aver the making by Cobbs of false answers to the questions inquiring, first, as to the previous attendance of physicians upon him (pleas 9 and 10); and, second, as to whether or not he had previously had certain named diseases (pleas 11, 12, and 13). Pleas 9 and 11 aver that Cobbs made the false answers with intent to deceive the defendant, while 10, 12, and 13 aver the effect of the false answers was to increase the risk of loss. All of the pleas were accompanied with a tender of premium paid.

With the exception of the pleas noted above, all the other pleas were either withdrawn or were held insufficient on demurrer by the court.

Plaintiff filed a special replication to pleas 9 to 13, inclusive, seeking to set up a waiver by the defendant of its right to defeat the policy on the ground of the false representations, for the reason that "after the death of the insured Herbert L. Cobbs, and before the filing of this suit, defendant denied liability on said policy set forth and sued upon, and assigned as the sole and single ground of said denial that the insured died as the result of suicide." Defendant's demurrer to special replication No. 2 was overruled by the court. Defendant, in reply to special replication No. 2, filed rejoinders 3 to 7, inclusive; these rejoinders, in substance, averred that, at the time it denied liability on said policy set forth and sued upon, and assigned as the sole and single ground of said denial that the insured died as a result of suicide, it did not have any knowledge of the fact that the representations made by the insured in his application for said policy of insurance were untrue, and that it did not have any knowledge of facts which, if pursued, and would have resulted in knowledge of the untruthfulness of said representations. Plaintiff's demurrer to these rejoinders was overruled, and issue was joined.

It will therefore be seen that, briefly stated, the pleadings in this case present three questions:

One: Did Herbert L. Cobbs commit suicide?

Two: Did Herbert L. Cobbs in his written application for insurance make false representations in reference to the previous attendance of physicians or to the previous condition of his health, and were these false representations made either with the actual intent to deceive the defendant, or, if made mistakenly or honestly, did such misrepresentations increase the risk of loss?

Third: Did the defendant, at the time it declined liability on the ground of suicide, waive the right to insist on the breaches of warranty by reason of false representations, because it then had knowledge, or was chargeable with knowledge, that these false representations had been made?

There are assignments of error relating to pleadings, but we have decided to confine our discussion to the other assignments of error, all of which may be grouped and discussed under three major subdivisions:

I. Errors relating to the defense of suicide.

II. Errors relating to the defense of false representations.

III. Errors relating to questions of evidence; the court's ruling thereon; its charge in reference thereto.

Taking up, then, the assignments of error relating to the defense of suicide: The dead body of Cobbs, the insured, was found in his room on the sixth floor of the Birmingham Athletic building on the 23d day of February, 1926, at 9 o'clock a. m. He was dressed in B. V. D.'s only. His pajamas were hanging up. His bed had been occupied. The body was lying on its back on the floor, between the bed and door. There was a .38 caliber Smith & Wesson pistol lying near the right hand with one empty chamber and one cartridge freshly fired. A bullet hole, evidently from the pistol shot, entered the right temple, passing through the head and coming out through the left ear. It is quite evident that Cobbs died as a result of the wound from the pistol; that the pistol was and had been in his possession; and that the pistol had been fired at close range. As supporting the theory that Cobbs intentionally fired the shot that took his life, defendant offered testimony tending to prove that Cobbs had, for several months, been under treatment for a venereal disease, which ended February 20, 1926, in a cure; that he owned about $2,800; that his immediate superior in the company for which he was working had, about six weeks prior to Cobbs' death, a talk with him expressing dissatisfaction with his work; that after this talk Cobbs apparently improved; that for some reason not given Cobbs failed to report for duty on the morning of February 23d after having been especially instructed to do so; that in August and September prior to his death Cobbs had applied for and obtained three policies of life insurance for $10,000 each, in each of said applications there were false representations as to material matter regarding the health, etc. of Cobbs; that at the time of the taking out of the three policies Cobbs was suffering much pain and inconvenience from the disease, and on one occasion expressed himself as contemplating taking his life and ending it all. On the contrary, plaintiff's evidence tended to rebut any inferences to be drawn from the above circumstances unfavorable to Cobbs. For instance, the evidence for plaintiff tends to prove that Cobbs was a bachelor in the prime of life, of an unusually cheerful and happy disposition, a delightful personality, with no dependents or incumbrances. He held an important position with the company for which he had been working for 16 years, drawing a salary of $350 per month; that the only impairment of his health was the venereal disease referred to, that it was local, not dangerous to health or life, and at the time of death he had been completely cured; that he was prominent and highly thought of in club and fraternal life, and that on the afternoon before his death he was cheerful and friendly with friends with whom he was in swimming; that he not only stood well with the company for which he was working, but was especially friendly with his immediate superiors. It is further shown by the evidence that each of the policies of life insurance contained a clause providing that they would become void if insured should commit suicide within one year of issue, and plaintiff offers evidence that it was only after repeated solicitation by agents of the insurance companies that Cobbs was induced to apply for the insurance contracts above...