Southern Life & Health Ins. Co. v. Morgan
Citation | 113 So. 540,216 Ala. 529 |
Decision Date | 30 June 1927 |
Docket Number | 7 Div. 768 |
Parties | SOUTHERN LIFE & HEALTH INS. CO. v. MORGAN. |
Court | Supreme Court of Alabama |
Appeal from Circuit Court, Calhoun County; R.B. Carr, Judge.
Action on a policy of life insurance by Sarah E. Morgan against the Southern Life & Health Insurance Company. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
Merrill & Field, of Anniston, for appellant.
Chas D. Kline, of Anniston, for appellee.
The suit was upon a policy of insurance upon the life of one Lena Riley. There was verdict and judgment for the plaintiff, from which defendant prosecutes this appeal.
The only question here argued relates to the action of the court in refusing the affirmative charge, as requested by defendant.
It is insisted that a breach of the warranty or condition of the policy that insured must be in good health at the time of the delivery of the policy has been established by the uncontroverted proof. The matter of unsoundness of health related only to tuberculosis, a disease of which the courts take judicial knowledge is material to the risk of insurance. Brotherhood of Ry. & S.S. Clerks, etc., v. Riggins, 214 Ala. 79, 107 So. 44, 47 A.L.R. 270; Metropolitan Life Ins. Co. v. Hyche, 214 Ala. 447, 108 So. 40. See, also 37 Cyc. 404; Nat. Life & Accident Ins. Co. v Winbush, 215 Ala. 349, 110 So. 571; Sov. Camp W.O.W., v. Hutchinson, 214 Ala. 540, 108 So. 520; Amer. Nat. Ins. Co. v. Rains, 215 Ala. 378, 110 So. 606; Mut. Life Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649.
The evidence is without dispute that insured died of tuberculosis on February 27, 1925, and examination on February 7th previous disclosed the disease. The policy was delivered January 26, 1925, and the question therefore for determination was whether or not insured was so affected on that date. It is urged by appellant that the testimony of the two doctors, as experts, so shows, and should therefore control, citing Harris v. N.C. & St. L.R.R. Co., 153 Ala. 139, 44 So. 962, 14 L.R.A. (N.S.) 261. But neither of the physicians testified insured had tuberculosis on the date of delivery of the policy. Some of their testimony was to the effect that the disease may be suddenly developed and result fatally in a very short time, and that insured could have so developed or contracted tuberculosis from the date of January 26th,...
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