Sovereign Camp, W.O.W. v. Davis

• Decision Date: 16 October 1941
• Docket Number: 4 Div. 197.
• Citation: 5 So.2d 480,242 Ala. 235
• Parties: SOVEREIGN CAMP, W. O. W., v. DAVIS.
• Court: Alabama Supreme Court

5 So.2d 480

242 Ala. 235

SOVEREIGN CAMP, W. O. W., v. DAVIS.

4 Div. 197.

Supreme Court of Alabama

October 16, 1941

Rehearing Denied Jan. 22, 1942.

Martin & Jackson, of Dothan, for appellant.

Mulkey & Mulkey, of Geneva, for appellee.

LIVINGSTON Justice.

This is an action on a fraternal insurance policy to recover a death benefit.

The application was made on the 27th of November, 1936, the certificate issued on the 19th of December, 1936, and delivered and accepted December 26, 1936. The insured died August 29, 1938, from a cancer on his chin.

Defendant entered the plea of general issue and three special pleas numbered 2, 3 and 4.

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 made at that time that he was in good health; and that insured had within ten years before making application for the policy consulted a physician and received treatment for a serious disease or illness, contrary to the statement of insured in his application for the policy sued on, and which said disease or illness materially increased the risk of loss.

Defendant relies largely upon the testimony of Dr. Boswell, who testified that he treated the insured for carcinoma of the face on different occasions during the years 1931, 1932 1933, 1935 and 1936. He further testified that according to his records "Henry M. Davis (the insured) came to me on July 17, 1931. I diagnosed his condition. I found lesions on the left side of his face. The nearest I can recollect it was in the region of the left molar (cheek) bone. It was a large fungating growth arising from a flat base extending out. An examination can be made by scraping the injured part and having it examined to determine whether or not it is cancer. An examination could prove that it was cancer by the changes in the cells of the growth. * * * I determined on July 17 1931 that the lesions that I have described on that occasion was cancer by clinical means only. That is to say, by the presence of numerous keratotic areas and by the presence of new growth, fungating in character, having the typical clinical appearance of cancer. A cancer is a tumor. A cancer is always a tumor. A tumor is not always a cancer. The difference between the two so far as my diagnosis and observation in my practice have gone depends on the clinical appearance and the microscopic findings. The examination I made on Mr. Davis on July 17, 1931, from which I concluded that he had cancer was observation and palpation (feeling) I made no microscopic examination. * * * It is true that an external cancer such as he had may be overcome by the proper use of such material as I do use."

The witness further testified, "The signature to a letter addressed to Mulkey and Mulkey, dated January 20, 1939, is my signature. I think that Miss Gardner dictated this letter. It is substantially true and it is my signature." The letter is as follows:

"January 20, 1939.

"Mulkey & Mulkey,

"Geneva Alabama.

"In reply to your recent letter relating to Henry M. Davis, our records show that he had small skin cancers on the face in 1931, 1932, 1933, 1934, 1935 and was seen one time on August 3, 1936. There were intervals when his face was entirely free from any malignant changes. The skin had strong predisposition to the formation of those small malignant lesions. His occupation is a farmer and the exposure to the sun was an ethiological factor. Finally, after an interval of several months, he was seen in 1938 with a very rapid growing advanced cancer on the left side of the face which we were unable to control. Partly due to the lack of cooperation on his part, and due principally to the fact that he was not financially able to remain here for a period of time to take adequate treatment, it would be impossible for me to state whether or not he actually had any active skin cancers on his face at the time he took the policy. But his record does show that he had been under treatment at intervals since 1931.

"F. P. Boswell."

The witness further testified: "I think that a cancer could originate, develop in the face or on the cheek, and result in death to a person within three to six months assuming that he does not during that time obtain regular or adequate treatment. * * * He was seen in 1937 on a number of instances. In my opinion that could develop, originate, under the conditions stated and result in death from three to six months. I would not say that this trouble changed from the left side of his face to the right side of his face. I would say that he had lesions on both sides of his face, separate and individual lesions on both sides, not changing from one side to the other, but developing on both sides of the face." And in answer to the following questions on cross-examination, "Did the left side of his face become smooth and apparently free from cancerous condition until it developed on his cheek?", the witness replied: "There were times when these lesions did, that he would be completely free from these lesions. When they would redevelop he would return, but at all times when he was seen he had the lesions on his face as evidenced by the fact that he received treatment to them. But none became so vigorous, I will say, as the one from which he finally died, which was taken on his left cheek, * * * and that was a more vigorous and more rapidly formulating type of growth than any of the others that he had previously developed." And to the question, "The first lesion that occurred on his left part of the face was in fact cured by you, wasn't it? That is, it disappeared?" he answered, "The first lesion cleared up."

Dr S.W. Windham, a witness for the plaintiff, testified: "I am acquainted with the different forms and kinds of cancer. We have two general classifications for carcinoma or cancer of the skin. One is what we call basal cell and squamous cell cancer. The basal cell carcinoma is benign. That is, as far as death is concerned, it doesn't produce death within itself. Squamous carcinoma is one that is malignant in that it will spread. It is metastatic, that is, malignant, will metastasize. What we call skin cancer only produces disability by direct extension. To have basal cell carcinoma near the eye, the only way that would spread would be prolific, and might involve the eye that way, but wouldn't spread to different part of the body, or to different parts of the face only by direct extension." The following question was propounded to witness: "Now doctor, assuming in this case that Mr. Davis died of a cancer on the chin, and that he died in less than a year from the time that the cancer developed on the chin, and assuming that priod thereto he had what you might call a skin cancer, or something on his cheek, but such had been cured up and arrested would there be any connection between the cancer on his chin, which resulted in his death, and in this so called skin cancer around his cheek?" Objection by defendant being overruled, witness answered "If the cancer on his face had been cured there would be no connection between the two." And to the question, "You mean if it had been healed up, doctor?" Dr. Windham answered, "Well a criterion that we use for cured is complete disappearance of the lesion." The witness further testified: "When the lesion disappears, I regard it as cured. To state positively that a man has a cancer of any kind, it can't be done without a microscopic examination of the cells of the tumor. You can look at this thing and say I think it is so and so, I think it is cancer, but to be absolutely sure you must have a microscopic examination of parts of the tissue." While on cross-examination the witness testified: "Benign lesions of the face can run forty years. Keratoses is what we commonly call sailor's skin or farmer's skin. It is a condition of the exposed parts of the body, face in question. It is present usually in fair complected individuals, blonds, freckled faced people. It is a scaley type of lesion that may be present for a long time on the face, and it is always the outer layer of the skin that is involved. It is not a form...