Sovereign Camp, W.O.W., v. Brock

• Decision Date: 11 May 1933
• Docket Number: 4 Div. 705.
• Citation: 226 Ala. 579,148 So. 129
• Parties: SOVEREIGN CAMP, W. O. W., v. BROCK.
• Court: Alabama Supreme Court

148 So. 129

226 Ala. 579

SOVEREIGN CAMP, W. O. W., v. BROCK.

4 Div. 705.

Supreme Court of Alabama

May 11, 1933

Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.

Action on a policy or certificate of life insurance by Pearl Brock against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals.

Certified by Court of Appeals, under Code 1923, § 7324.

Affirmed.

T. L Borom, of Troy, for appellant.

M. A Owen, of Elba, and M. S. Carmichael, of Montgomery, for appellee.

BROWN Justice.

This is an action by the beneficiary named in an "Ordinary Whole Life Certificate" of insurance issued by the defendant to Samuel H. Brock in pursuance of a written application made by the insured on the 26th day of August, 1930, in which the insured was asked the following questions and made the following answers:

"12. Have you within the past five years suffered any mental or bodily disease or infirmity? No.

"13. Have you within the past five years consulted or been attended by a physician for any disease or injury or undergone any surgical operation? No."

And made the following warranty: "For the purpose of securing this additional beneficiary certificate, I hereby warrant that I have not been sick since the date of my original application, except as stated herein; that I am now in sound bodily health; that I have no injury or disease that will tend to shorten my life," etc. Italics supplied.

The certificate was issued and delivered on the 30th day of September, 1930, and on its delivery the insured signed the following warranty: "I have read the above certificate * * * and accept the same * * * and warrant that I am in good health at this time, and have not been sick or injured since the date of my application."

Some of the defendant's special pleas set up fraud on the part of the insured in his application, alleging that said representations contained therein were made with actual intent to deceive, and others allege that the said fraudulent representations and warranties were in respect to matters that increased the risk of loss.

The plaintiff had judgment for the face of the policy with interest.

It is conceded that plaintiff made a prima facie case, by offering the certificate of insurance and a stipulation of fact that proof of loss had been duly made before suit brought.

The questions presented by the assignments of error relate to the special defenses of fraud and breach of warranty.

The appellant's first insistence is, that the evidence is without dispute or room for adverse inference that at the time of making the application and the delivery of the policy the insured was afflicted with the disease diagnosed as "syphilitic aortitis angina pectoris and hypertrophy" of the heart, a disease that materially increased the risk of loss, and therefore the court erred in refusing the affirmative charge.

The evidence shows that Brock, the insured, was stricken with his last illness on November 22, 1930, and lingered until the 28th day of January, 1931, when he died. The evidence goes to show that aortitis-an inflammation of the aorta-in some cases is caused by syphilis, and this in turn causes hypertrophy or enlargement of the heart; that these cause angina pectoris, but that the basic cause or disease is the syphilitic germ in the blood, and the presence of the germ in the blood can only be definitely ascertained by laboratory test. There was also evidence going to show that such inflammation is due to different causes.

The evidence further shows that Brock was treated at irregular intervals, from March 22, 1928, up to his last illness by Drs. Wilkerson and Hayes, and that he was treated during said last illness by the same physicians.

Dr. Wilkerson testified that he was consulted on March 22, 1928, and that insured then complained of "a tightness under the breast bone and pain down the outer side of both arms, brought on by exertion"; that he had been having this trouble for several months. "My diagnosis was syphilitic aortitis, angina pectoris, and a slight hypertension." That aortitis will shorten the life of a person so afflicted; that from witness' "knowledge and observation as a physician, and from the knowledge I obtained in my examination and diagnosis of the disease [with] which Samuel H. Brock was afflicted prior to the 26th day of August, 1930, the disease with which he was then afflicted was the cause of his death"; that "at the time I first examined Samuel H. Brock there was no evidence of hypertrophy of the heart. I do not recall the date on which hypertrophy of the heart of Samuel H. Brock first developed, but the first record that I have of enlargement or hypertrophy was on November 5th, 1930. On that date the examination showed his heart was enlarged. As well as I recall, there was no evidence of enlargement of the heart prior to November 5th, 1930. Between March, 1928, and August 26, 1930, Samuel H. Brock did have a disease that would shorten his life, he had syphilitic aortitis, angina pectoris and a slight hypertension, any of these would tend to hasten his death."

The testimony of this witness shows that he did not in person make the laboratory test, but that this was made by Dr. Trumper.

Dr Hayes testified, in...