Sovereign Camp, W.O.W. v. Hutchinson

• Decision Date: 25 March 1926
• Docket Number: 8 Div. 636
• Parties: SOVEREIGN CAMP, W.O.W., v. HUTCHINSON.
• Court: Alabama Supreme Court

108 So. 520

214 Ala. 540

SOVEREIGN CAMP, W.O.W., v. HUTCHINSON.

8 Div. 636

Supreme Court of Alabama

March 25, 1926

Rehearing Denied May 13, 1926

Appeal from Circuit Court, Madison County; O. Kyle, Judge.

Action by Nona S. Hutchinson against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff defendant appeals. Reversed and remanded.

Plea in action on beneficiary certificate, setting up misrepresentation and averring that it was made with intent to deceive, and that defendant did not know truth and was deceived thereby, held not demurrable.

The action is by the beneficiary under a fraternal benefit policy to recover the amount of the policy.

The defendant filed ten special pleas, to each of which demurrer was sustained. Each of these pleas was amended, and the demurrer was again sustained to each plea as amended. Special pleas numbered 12 to 21, inclusive, were then filed, to which also demurrer was sustained.

Plea 13 is as follows:

"13. That on or about January 21, 1922, the said W.J Hutchinson made a written application to join defendant society, and stated therein that he did not have cancer or tumor, and in said application agreed and warranted that all the statements therein were full, complete, and true, and agreed therein that if any untrue statement or answer was made by him therein, his beneficiary certificate (the one sued on) should become void, and all rights of any person or persons thereunder shall be forfeited.

"Defendant alleges that said statement and warranty is untrue, in this, that said Hutchinson then had cancer or tumor, and which disease is serious and incurable, and which increased the risk of loss in that it caused the death of said Hutchinson much sooner than if he had not had said disease."

Plea 14 alleges that the plaintiff's written application, which was a part of the policy sued on, contained this:

"I hereby certify, agree, and warrant that I am of sound bodily health and mind; that I am temperate in habits, and have no injury or disease that will tend to shorten my life."

And also:

"I hereby certify, agree and warrant that all the statements *** are full, complete and true, *** and that any statements made by me for reinstatement shall be warranties and I agree that any untrue statements or answers made by me in this application, or in any application for reinstatement, or to the examining physician, or any concealment of facts, *** intentional or otherwise, *** my beneficiary certificate shall become void, and all rights *** thereunder shall be forfeited."

And it is charged:

"That in said application said Hutchinson stated or answered that he did not have and never had had cancer or tumor. Defendant alleges that said statement or answer was untrue in this, that said Hutchinson did have tumor or cancer; that said disease is serious and incurable and caused his death much sooner than if he had been free of the same, wherefore defendant's risk of loss was increased."

Plea 17 sets out the same statements of the application and policy shown in plea 14, and alleges:

"That said agreement and warranty that he was of sound bodily health and had no injury or disease that would tend to shorten his life was untrue in this, that at the time he made said application he had or was suffering from some disease or ailment which not only tended to shorten his life, but did in fact shorten it, so that he died on April 26, 1922, the name of which disease is unknown to defendant, but which increased the risk of loss to defendant."

Plea 18 sets up the same statements and warranties as in pleas 14 and 17, and also the warranty of the assured, made when he accepted delivery of the policy, and indorsed thereon by him, that "I am in good health at this time and have not been sick or injured since the date of my application, and that all the requirements of the constitution and laws of the society have been complied with"; and charges "that said warranty was untrue in this, that said Hutchinson had been sick with neuritis at some time between the date of said application and the 1st day of February, 1922, which false warranty or misrepresentation was made with actual intent to deceive defendant ***; that said Hutchinson had been informed by one or more physicians that he had neuritis, but concealed such fact or information from defendant." Plea 19 sets up the same statements and warranties as in plea 14, and, specifically, "that in said application said Hutchinson made the statement or answer that he had not consulted or been attended by a physician for any disease or injury during the past five years, except for influenza in 1918"; and it charges that said warranty was untrue in that he had within the five years been tended and treated by a physician for neuritis, and that said false representation was made with actual intent to deceive defendant.

Pleas 20 and 21 set up several provisions of the policy that it should impose no liability on defendant until, among other things, it had by authority been manually delivered into the hands of the beneficiary while in good health.

Plea 20 alleges:

"That at the time said policy *** was delivered to the said Hutchinson he was not in good health in this, that he was suffering from a disease or diseases, the exact names of which is unknown to defendant, and that he finally died from the effects thereof, wherefore said certificate was wrongfully delivered and is null and void ***; that defendant did not know he was not in good health; that he concealed said facts with actual intent to deceive defendant, and did so deceive defendant."

Plea 21 alleges:

"That the said Hutchinson was not in good health, in that he was suffering with some disease, and died from the effects thereof; that the exact name of said disease is unknown to defendant, when said beneficiary certificate was delivered into his hands ***; that Hutchinson concealed the conditions of his health with actual intent to deceive defendant and did so deceive defendant, and defendant did not know the condition of his health, and relied on the representation of good health."

Each of these pleas was severally demurred to on numerous grounds, the chief of which are substantially as follows:

(1) That it does not allege that the assured knew of the existence of the cancer, or tumor, or neuritis, or ill health, at the time he made the representations or warranties.

(2) Nor that defendant did not know of their existence, nor of the existence of a disease which tended to shorten, and did shorten, the life of the assured.

(3) Nor what disease the assured consulted a physician about.

(4) Nor that assured was advised by a physician that he had any disease or injury.

(5) Nor that it was not a casual consultation merely, or for a real disease contemplated by the contract.

(6) It does not show that the conditions, or false warranties or representations were relied upon by defendant.

(7) Nor that it was deceived by them.

(8) Nor that the assured knew his said statements were untrue, and made them with intention to deceive or defraud defendant.

(9) Nor that said Hutchinson was suffering from any disease which tended to increase the risk of loss.

C.H. Roquemore, of Montgomery, for appellant.

R.E. Smith and R.C. Brickell, both of Huntsville, for appellee.

SOMERVILLE J.

In Ala. Gold Life Ins. Co. v. Johnston, 80 Ala. 467, 470, 2 So. 125, 128 (59 Am.Rep. 816), in discussing the nature and effect of warranties and representations in contracts of insurance, it was said:

"As a general rule it has been laid down, that a warranty must be a part and parcel of the contract of insurance, so as to appear, as it were, upon the face of the policy itself, and is in the nature of a condition precedent.

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