Sovereign Camp, W.O.W., v. Rowe

• Decision Date: 25 June 1932
• Docket Number: 8 Div. 396.
• Parties: SOVEREIGN CAMP, W. O. W., v. ROWE.
• Court: Alabama Supreme Court

143 So. 171

225 Ala. 336

SOVEREIGN CAMP, W. O. W., v. ROWE.

8 Div. 396.

Supreme Court of Alabama

June 25, 1932

Appeal from Circuit Court, Morgan County; James E. Horton, Judge.

Action on a certificate of life insurance by Brenda H. Rowe against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Wert &amp Hutson, of Decatur, for appellant.

A. J Harris and Norman W. Harris, both of Decatur, for appellee.

GARDNER J.

The suit is upon an insurance benefit certificate. The defense rests upon the theory that the insured was not in sound health, such as to materially increase the risk of loss, at the time of the delivery of the policy, contrary to the warranty in his application, and that he misrepresented the condition of his health with actual intent to deceive. Section 8507, Code 1923.

The application was made on April 2, 1930, the certificate issued April 16th, and was delivered and receipted for by the insured on April 19, 1930.

Defendant rests largely upon a showing as to the testimony of Dr Elliott, wherein it is stated that on the night of April 5, 1930, he attended insured who was suffering from appendicitis, and that he called again on April 6th and 7th, that he advised an operation, and that insured died in December following of chronic appendicitis.

But there was other proof tending to the contrary and presenting a jury question. It was to the following effect: Insured was strong and robust in appearance, and had never been sick until Saturday night, April 5th, when he complained of a pain in his stomach, which he attributed to something he had eaten. He remained in bed Sunday, but was up thereafter and went to his business (he was a merchant) on Tuesday, and continued to go to the store every day until Thanksgiving morning November 27th, when he became sick, had an operation for appendicitis on the 28th, and died December 5, 1930. As to his sickness April 5th, he had no nausea, no fever, and from the time he resumed his place at the store on Tuesday the 8th to the morning of Thanksgiving following, insured appeared well and in good health, and made no complaint of any kind, and that the symptoms of the fatal sickness were different from those of April 5th.

The financial secretary of the local camp directed insured to Dr. Howell, the camp physician, for examination, which was had on April 4th. This examination, according to Dr. Howell's testimony, disclosed no physical defects of any character, and that, if insured had been suffering with chronic appendicitis at that time, it would doubtless have been discovered; that, if one recovers from the attack, he usually recovers in a few days. This witness further testified that about ten days or two weeks following the examination on April 4th, insured came for another examination; that he knew of his previous sickness and of the report that it was appendicitis and made an examination which disclosed no tenderness or soreness and insured was in good health at that time and "thoroughly comfortable." His testimony is further to the effect that when there is recovery from one attack of appendicitis and months elapse before another, they are each separate "and it doesn't affect his health between the times." Dr. Howell's testimony further tends to show that other causes could have produced the symptoms of which insured complained when sick on April 5th, and that whatever attack insured had would not be considered "as a grave attack." And the testimony of defendant's medical director shows that it is possible for one to fully recover from a very light attack between April 7th and 19th.

The financial secretary stated insured appeared in good health from the time of the application to the delivery of the certificate; that when insured signed for the certificate he did not read the...