Sovereign Camp, W.O.W. v. Jackson

• Decision Date: 15 October 1936
• Docket Number: 4 Div. 895
• Citation: 170 So. 192,233 Ala. 120
• Parties: SOVEREIGN CAMP, W.O.W., v. JACKSON.
• Court: Alabama Supreme Court

170 So. 192

233 Ala. 120

SOVEREIGN CAMP, W.O.W., v. JACKSON.

4 Div. 895

Supreme Court of Alabama

October 15, 1936

Appeal from Circuit Court, Houston County; O.L. Tompkins, Special Judge.

Action on a policy of life insurance by Georgia Jackson against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 7326, Code 1923.

Affirmed.

W.L Lee, of Dothan, for appellant.

J.N Mullins, of Dothan, for appellee.

GARDNER Justice.

Suit on a beneficiary certificate issued by defendant on the life of Porter H. Jackson, wherein plaintiff, his wife, was the named beneficiary. The certificate contained a double indemnity clause, providing for payment of double the amount of the policy "upon receipt of due proof that the death of the member resulted, directly and independently of all other causes, from bodily injury effected solely through external violent and accidental means, and within sixty days after sustaining such injury." The stipulated exceptions are here unimportant.

The application for insurance was made October 12, 1933, the certificate issued October 31, 1933, and was accepted by insured November 7, 1933. Insured died on November 16, 1933. Plaintiff's proof was to the effect that her husband, the insured, was a farmer in robust health, with no loss of time from his work during the last five years; that in the evening of November 14, 1933, insured was engaged in stripping cane and was cut or scratched with a part of the cane fodder on the upper lip, with slight bleeding resulting, but continued with his work; the lip was considerably swollen the next morning, medical aid was given, but to no avail, and insured died two days thereafter from blood poisoning as a result of the injury.

Upon the question of double indemnity, defendant cites, against a recovery therefor, the recent case of Northam v. Metropolitan Life Ins. Co., 231 Ala. 105, 163 So. 635.

But the two cases are so dissimilar as to the facts as to render that authority of no practical value here, and we consider that question as requiring no further discussion.

Upon the merits, defendant pleaded breach of warranty and misrepresentation as to previous sickness and medical consultations contained in insured's application, as well as the warranty in his acceptance of the certificate, that he had not been sick since the date of his application.

As to the proof it appears insured was visited by a physician after his application, and on October 18, 1933, and his trouble diagnosed as malaria. But the doctor testifies it was only a slight temporary indisposition, that he gave the proper treatment, and so treated, it is not a sickness that affects the general soundness and healthfulness of the system. There was proof also that in 1931 insured was treated for sciatica, and plaintiff offered countervailing medical proof to the effect that such disease is consistent with good health, especially a temporary attack, and in answer to both the sickness in 1931 and 1933, numerous witnesses were introduced to show that insured was a robust farmer attending to his daily duties, and with no loss of time for the past two and five years preceding his application for insurance.

Under the present statute (Code 1923, § 8507), any such representation or warranty on the part of the insured as here involved must, to be available as a defense, be made with the intent to deceive or must have increased the risk of loss. But, as pointed out in Sovereign Camp, W.O.W. v. Moore, 232 Ala. 463, 168 So. 577, it is not essential that both alternatives concur.

And upon the question of proof there is no insistence by counsel for defendant that a jury question was not presented both as to any intent to deceive and as to whether or not the matter misrepresented increased the risk of loss. The argument is that as a matter of pleading these questions were not in the case, for the reason that the...