Provident Sav. Life Ins. Soc. v. Pruett

• Decision Date: 28 November 1908
• Parties: PROVIDENT SAVINGS LIFE INS. SOCIETY v. PRUETT.
• Court: Alabama Supreme Court

47 So. 1019

157 Ala. 540

PROVIDENT SAVINGS LIFE INS. SOCIETY v. PRUETT.

Supreme Court of Alabama

November 28, 1908

Rehearing Denied Dec. 24, 1908.

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Action by Oscar J. Pruett against the Provident Savings Life Insurance Society. Judgment for plaintiff. Defendant appeals. Affirmed.

The history of the case is sufficiently stated in the opinion of the court. Pleas 52, 53, 54, and 55, as originally filed, are as follows: "(52) The policy sued on was issued by defendant on the written application of the assured, in which he represented that he had never had any disease of the liver, which statement was fraudulent, in this: that the assured had had malarial fever and enlarged liver in, to wit 1888, which assured knew when he made such application." (53) Same as 52, except it alleges that he had never had any sickness or infirmity, except jaundice in 1893, from which he had made a good recovery, and that such representation was fraudulent, since assured had had jaundice in 1884. (54) Same as 53, with the allegation that assured had had la grippe in 1888. (55) Same as 53, except the allegation that assured had had hemorrhage from the stomach and ulcer of the stomach prior to said application. The judgment entry as to joinder of issues sufficiently appears in the opinion.

The defendant offered in evidence the deposition of William E Stephens, to which plaintiff had duly filed his objections separately and severally to the questions, which objections were sustained by the court: "Question 1. Was said application submitted to the medical director of said society when it was received, and, if so, for what purpose was said submission made?" Objection was interposed that it called for the undisclosed motive or intention of defendant and not for a statement of facts, and it was immaterial irrelevant, and illegal. "(2) Would said policy have been issued without his approval? (3) Did you examine application of Seth Green Pruett, hereto annexed, for the purpose of determining whether a policy of insurance should be issued thereon by the society? (4) Was the policy hereto annexed issued as a result thereof? (5) If said application had shown an answer to question 15, part II thereof, that the applicant had had or then had any disease of the liver, would the said policy then have been issued? (6) If said application had shown such fact or condition, what would the society have done with reference to said application and the issue of a policy thereon? (7) If said application had shown in answer to question 18, part II of said application, that sometime between 1885 and 1887, or in 1887 or 1888, that said applicant had had a severe attack of malarial fever, with an enlarged liver, would you have approved said application? (8) Under such conditions, would said policy have been issued? (9) If you should say, in response to any of the above questions, that said application would not have been approved, and that said policy would not have been issued, state fully and particularly why. (10) If said policy had shown, in answer to question 15, part II of said application, that the applicant then had or had ever had pulmonary trouble, or pulmonary tuberculosis, would said policy have been issued? (11) If said application had shown such a fact or condition, what would said society have done with reference to issuing said policy? (12) If you say, in response to any of the questions in this interrogatory, that no policy would have been issued, state fully and particularly why, and the facts supporting your answer." Similar questions were propounded to other medical directors and answered. Objections the same as those stated to question 1 were sustained to all the other questions and answers.

The following charges were requested by defendant: (1) "The court charges the jury that if they find from the evidence that the assured had jaundice, not mentioned in his application, prior to the date of his application for the policy sued on, they must find a verdict for defendant." (2) General affirmative charge to find for the defendant. (3) "The court charges the jury that, if they find the assured had malarial fever and an enlarged liver prior to his application thereon, such malarial fever and enlarged liver was material to the risk." (4) "The court charges the jury that hemorrhage from the stomach and ulcer of the stomach, if had by the assured prior to his application therein, would be material to the risk." (5) "The court charges the jury that jaundice, if had by the assured prior to his application herein, would be material to the risk." (6) Same as 5, except la grippe in place of jaundice. (7) Same as 5 except disease of the liver in place of jaundice. (8) Same as 5, except malarial fever and enlarged liver in place of jaundice. (9) "The court charges the jury that the evidence shows conclusively that the assured had a disease of the lungs on the date of his application herein." (10) "The court charges the jury that the evidence shows conclusively that the assured had pulmonary tuberculosis at the date of his application herein." (11) "If the jury believe from the evidence in this case that the assured knew, when he made his application for the policy sued on, that he had had hemorrhage from the stomach and ulcer of the stomach prior thereto, they must find a verdict for defendant." (12) "The court charges the jury that, if they find from the evidence that the assured had had la grippe prior to the date of his application for the policy sued on, they must find a verdict for defendant." (13) Same as 12, except hemorrhage and ulcer of the stomach in place of la grippe. (14) Same as 12, except disease of the liver in place of la grippe. (15) Same as 12, except malarial fever and enlarged liver in place of la grippe. (16) "The court charges the jury that, if assured made any false representation to the insurer in his application in this case in any matter material to the risk, plaintiff cannot recover." (17) "The court charges the jury that if the representations made by the assured in his application were made material by an agreement between him and the insurer, and the jury find from the evidence that any of such representations were false, plaintiff cannot recover therein." (18) "The court charges the jury that the evidence shows conclusively that the assured had had jaundice prior to the date of his application therein, not mentioned in said application." (19) "The court charges the jury that, if they find from the evidence in this case that the assured made...