Royal Family Ins. Co. v. Grimes
| Decision Date | 20 October 1964 |
| Docket Number | 4 Div. 491 |
| Citation | 42 Ala.App. 481,168 So.2d 262 |
| Parties | ROYAL FAMILY INSURANCE CO. and United Security Life Insurance Company v. Jim GRIMES. |
| Court | Alabama Court of Appeals |
S. P. Keith, Jr., Birmingham, for appellants.
W. H. Baldwin, Andalusia, and J. Ned Moore, Opp, for appellee.
Appellee recovered judgment in the Circuit Court of Covington County against each of the appellants for hospital and medical benefits provided in policies of insurance issued to him by appellants.
By agreement the cases were jointly tried with separate judgment rendered in each case, and are here submitted on one record.
The amount of benefits, if any due plaintiff was stipulated by the parties.
The pertinent provisions of the respective policies are that loss from sickness or disease is covered only if the sickness or disease commenced 30 days after the effective date of the policy, and further, that loss resulting from cancer is covered only if the cause thereof originated six months after the effective date of the policy.
The effective date of the policies was February 15, 1961.
Dr. James Dunn, a duly qualified physician of Opp, Alabama, testified that cancer of the mouth was the condition necessitating the operation made the basis of the claim involved. The evidence shows the operation, performed on December 27, 1961, consisted of
Dr. Dunn further testified he first treated plaintiff on November 12, 1958, for a condition of the mouth known as leukoplakia. Leukoplakia is a thickening and whitening tissue area involving just the mucous membrane on the inside of the mouth. It is quite prevalent in the mouths of tobacco chewers and snuff dippers. The leukoplakia was on the left side of plaintiff's mouth, around the back of his jaw, extending down into the globe of his mouth under his tongue. The winess treated plaintiff for leukoplakia from time to from 1958 until December of 1961.
In October of 1961, Dr. Dunn made a clinical finding of cancer of the mouth and referred plaintiff to Montgomery for surgery. Dr. Dunn testified he did not think plaintiff had cancer of the mouth in 1958, and did not think he had it in January, 1961; that the only way to make a positive statement of cancer is by a biopsy and that he never performed a biopsy on plaintiff, but clinically he thought he had cancer in October, 1961. Dr. Dunn also testified that on January 16, 1961, he sent plaintiff to Montgomery for removal of cancer on his nose by x-ray.
One theory relied on by appellants is that plaintiff misrepresented the condition of his health in the applications. Some of the questions and answers in the applications were:
'Have you * * * ever had * * * cancer?
'No.'
'Have you * * * received medical or surgical advice or treatment within the past five years. If answer is 'Yes,' give details below:
'Date
11/14/57
Illness or Accident
Accident--cut hand
Doctor
Opp. Ala.
The plaintiff testified he could not read, but the soliciting agents asked him some questions about his arm. He told them about going to Dr. Lee in 1957, when he lost his hand in an accident. He did not tell them about the leukoplakia in his mouth but he answered all the questions that were asked Him. He signed the applications by making his mark after the agent filled in the blanks, but he did not read the applications after the blanks were filled in, since he could not read.
Mr. Frank A. Aspinwall, President of Royal Family, and Vice-President in Charge of Claims for United Security, testified the policies were issued on the basis of the applications filed with the companies, and that the companies relied upon the representations made in the applications in the issuance of the policies; that if they had...
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