Sovereign Camp, W.O.W., v. Screws

• Decision Date: 11 October 1928
• Docket Number: 6 Div. 132
• Parties: SOVEREIGN CAMP, W.O.W., v. SCREWS.
• Court: Alabama Supreme Court

119 So. 644

218 Ala. 599

SOVEREIGN CAMP, W.O.W., v. SCREWS.

6 Div. 132

Supreme Court of Alabama

October 11, 1928

Rehearing Denied Jan. 24, 1929

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action on a policy of life insurance by Minnie Screws against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals. Affirmed.

C.H Roquemore, of Montgomery, for appellant.

F.D McArthur, of Birmingham, for appellee.

SAYRE J.

Suit by appellee on a benefit certificate--insurance policy--issued by defendant, appellant, on the life of appellee's husband, Henry R. Screws. Errors assigned relate to rulings on the admission of evidence, the refusal of special charges requested by defendant, and the action of the court in overruling defendant's motion for a new trial, which will be considered, where statement is deemed necessary, in the order of their presentation in the brief for appellant.

The physician, who had examined the insured on his application for a benefit certificate, was allowed to testify for plaintiff that, refreshing his recollection by looking at the record made by him at the time of his examination, deceased was in good health at that time. Defendant's objection was overruled without error. The question sought to be raised at this point was elaborately considered in Acklen v Hickman, 63 Ala. 494, 35 Am.Rep. 54, and the rule there stated has been consistently followed. Warten v. Black, 195 Ala. 102, 70 So. 758; L. & N.R. Co. v. Moorer, 195 Ala. 346, 70 So. 277; Russell v. Bush, 196 Ala. 321, 71 So. 397; Oden-Elliott Lbr. Co. v. Daniel-Gaddis Lbr. Co., 210 Ala. 584, 98 So. 730; Bailey v. Griffin, 211 Ala. 220, Polytinsky v. Sharpe,

211 Ala. 510, 100 So. 750; Central of Ga. R. Co. v. Wilson, 215 Ala. 616, 111 So. 901. Subsequently it was developed that the witness, though looking at the record, had no independent recollection of the state of the health of deceased at the time inquired about. No new objection was interposed. Even so, the testimony of the witness and the memorandum or record made by him were admissible. Acklen v. Hickman, supra; Polytinsky v. Sharpe, supra; Floyd v. Pugh, 201 Ala. 33, 77 So. 323; Deal v. Hubert, 209 Ala. 20, 95 So. 349; Alabama Trunk Co. v. Hauer, 214 Ala. 474, 108 So. 339. Many other adjudicated cases might be cited to both propositions. There was no error in this ruling.

Defendant introduced the deposition of Dr. Parker, who testified to facts which, if accepted by the jury, very clearly avoided the policy under several of defendant's special pleas. There was no attack upon Dr. Parker's professional standing or credibility as a witness, and for that reason there was no error in denying to defendant the right to show his high standing in the community.

That deceased had nephritis or kidney disease at the time of his examination was not by specific allegation of any one of the several special pleas made an issue in the cause; but that he had "some disease or ailment" which tended to shorten his life was alleged in plea 9, which went to the jury along with other pleas--whether properly so or not is not now in question. There was also evidence that deceased had suffered from kidney disease for 10 months before his death, which occurred about 16 months after the issuance of the benefit certificate upon which the suit was brought. And according to the expert testimony of Dr. Parker of Birmingham and Dr. Bass of Gadsden, the kidney affection and the aortic insufficiency or valvular disease or affection of the heart which caused the death of the insured had been produced by syphilis, from which deceased had suffered at an earlier time in his life. The question put to the examining physician and complained of in the fifth assignment of error, viz., "Doctor, if you had tested his urine and he had kidney trouble, would the urine tested have disclosed that?" and the answer, viz., "The test that I made showed no trouble with the urine"--though not strictly responsive--were allowed without error.

It may be that defendant, when preparing its bill of exceptions, inadvertently wrote that the witness, in response to the hypothetical question quoted in the seventh assignment of error, would answer in the affirmative, for a negative answer only would have been of any service to defendant. But we cannot assume corrections of the bill of exception in order to establish error, for it is as easily possible that defendant at the time stated that the answer would be in the affirmative as that the inadvertence occurred afterwards in the preparation of the bill of exceptions; and, at any rate, we cannot undertake the doubtful and dangerous task of correcting the record after the fashion proposed by defendant, appellant. Appellants are bound by the terms of the bills of exceptions they bring here.

The court refused to allow defendant to show that money paid by plaintiff or her husband (insured) as premiums or assessments had been returned by defendant to plaintiff after his death. There was no error because there was no pleading under which this evidence should have been received. The general issue did not go to this point. If plaintiff was to be estopped, the estoppel should have been pleaded.

Dr J.C. Belding testified as a witness for plaintiff. He had made, to use his language, a "complete vertebral...