Southern Life & Health Ins. Co. v. Morgan

Decision Date30 June 1927
Docket Number7 Div. 768
Citation113 So. 540,216 Ala. 529
PartiesSOUTHERN LIFE & HEALTH INS. CO. v. MORGAN.
CourtAlabama Supreme Court

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.

GARDNER J.

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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14 cases
  • Commonwealth Life Ins. Co. v. Harmon
    • United States
    • Alabama Supreme Court
    • March 22, 1934
    ... ... provisions of the policy alleged to be breached in that the ... insured was not in sound health on the date of the delivery ... of said policy, but was affected with a serious disease which ... 407, 137 So. 23; Heralds of Liberty ... v. Collins, 216 Ala. 1, 110 So. 283; Southern Life & ... Health Ins. Co. v. Morgan, 216 Ala. 529, 113 So. 540; ... North Carolina Mut. Life ... ...
  • National Life & Acc. Ins. Co. v. Collins
    • United States
    • Alabama Supreme Court
    • February 11, 1943
    ... ... of Va. v. Newell, 223 ... Ala. 401, 137 So. 16), and, to avoid the policy, unsound ... health must be misrepresented with intent to deceive and as ... being material to the risk, or as ... Louisiana State Life Ins. Co. v. Phillip 223 Ala. 5, ... 135 So. 341; Southern Life & Health Ins. Co. v. Morgan, ... 216 Ala. 529, 113 So. 540; Miller v. Metropolitan Life Ins ... ...
  • Woodmen of the World Life Ins. Soc. v. Phillips
    • United States
    • Alabama Supreme Court
    • February 26, 1953
    ...have recovered because the insured was dead within sixty days after the delivery of the policy. In the case of Southern Life & Health Ins. Co. v. Morgan, 216 Ala. 529, 113 So. 540, the undisputed evidence showed that the policy was delivered on January 26, 1925, and the insured died of tube......
  • National Life & Acc. Ins. Co. v. Cummings, 6 Div. 981
    • United States
    • Alabama Court of Appeals
    • February 2, 1937
    ... ... hereof, nor unless on said date the insured is alive and in ... sound health. Should the proposed insured not be alive or not ... be in sound health on the date hereof any ... 714; Mutual Life Ins. Co. v. Mandelbaum, 207 ... Ala. 234, 92 So. 440, 29 A.L.R. 649; Southern Life & ... Health Ins. Co. v. Morgan, 216 Ala. 529, 113 So. 540; ... Brotherhood of Railway & ... ...
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