Sovereign Camp, W.O.W. v. Moore

• Decision Date: 22 December 1938
• Docket Number: 1 Div. 13.
• Citation: 186 So. 123,237 Ala. 156
• Parties: SOVEREIGN CAMP, W. O. W., v. MOORE.
• Court: Alabama Supreme Court

186 So. 123

237 Ala. 156

SOVEREIGN CAMP, W. O. W., v. MOORE.

1 Div. 13.

Supreme Court of Alabama

December 22, 1938

Rehearing Denied Jan. 26, 1939.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action on a policy of life insurance by Ellen V. Moore against the Sovereign Camp of the Woodmen of the World. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Lyons &amp Chamberlain and Daniel H. Thomas, all of Mobile, for appellant.

Smith &amp Johnston, of Mobile, for appellee.

BOULDIN Justice.

A bill of exceptions duly presented within the ninety days required by law may, after the expiration of ninety days, and during the sixty days allowed for settling and signing the bill of exceptions, be corrected as to recitals of evidence or supplying omissions therein, at the instance of either party; but not by incorporating additional exceptions. In the latter case, we have held the bill of exceptions signed is not that presented within the time required by law, and must, on motion, be stricken. Tapia v. Williams et al., 172 Ala. 18, 54 So. 613; Illinois Cent. R. Co. v. Posey, 212 Ala. 10, 101 So. 644; Southern Wood Preserving Co. v. McCamey, 218 Ala. 201, 118 So. 393.

The record here discloses only the incorporation of evidence omitted from the original draft of the bill of exceptions. The motion to strike the bill of exceptions is overruled.

This is the third appeal in this case. For former decisions, see Sovereign Camp, W. O. W., v. Moore, 232 Ala. 463, 168 So. 577, and Sovereign Camp, W. O. W., v. Moore, 235 Ala. 117, 177 So. 642.

Amended plea No. 5 was refiled on the last trial, and demurrer overruled. Thereupon, on motion of plaintiff, certain portions of the plea were stricken as irrelevant and immaterial. This plea in full, with the stricken portions italicized, appears in the report of the case.

While a motion to strike a pleading usually precedes the testing of same by demurrer, this rule has no application to a motion to strike irrelevant and immaterial matters incorporated in a plea.

Representations in applications for life insurance touching consultation with or treatment by a physician stand on the same footing as representations of good health. It must appear they relate to some serious ailment material to the question of life expectancy. Metropolitan Life Ins. Co. v. Dixon, 226 Ala. 603, 148 So. 121; Sovereign Camp, W. O. W., v. Rowe, 225 Ala. 336, 143 So. 171; Sovereign Camp, W. O. W., v. Deese, Ala.Sup., 181 So. 274; 4 Couch on Ins. § 889, p. 3018.

Under our statute it is not essential that the matter misrepresented and warranted to be true must in fact have actually shortened the life of the insured. If the matter misrepresented increased the risk of loss is the language of the statute. The risk of loss is increased if the matter misrepresented be so material to the question of life expectancy that an insurer may have reasonably declined to accept the risk if the truth had been revealed. Sovereign Camp, W. O. W., v. Moore, supra; Sovereign Camp, W. O. W., v. Deese, supra; Sovereign Camp, W. O. W., v. Young, Ala.Sup., 186 So. 453.

On direct examination of Dr. Cecil Ross, witness for defendant, admitted to be an expert, the following appears:

"I was the Doctor in Mobile for the Veteran's Administration. If I remember correctly I was on duty about six or seven years ending up in 1932 or 1933, and for six or seven years prior thereto. I knew Daniel Harris Verneuille during his life time. I examined him on numerous occasions. I examined him for the Veteran's administration, that is, made a complete Physical examination. I found he had a nervous disease which I diagnosed as hysteria-neurosis, which is a mental condition in which his nervous system is not well balanced.

"The witness was then asked the following question:

"As a result of your examination, did you certify him to the Veteran's Hospital in Tuscaloosa, Alabama? to which question the Plaintiff objected on the ground that it called for irrelevant, incompetent and immaterial testimony. The Court sustained plaintiff's objection and the defendant reserved an exception to the ruling of the Court.

"The witness then continued to testify:

"The disability which I found him suffering from, would incapacitate him. I examined him many times. I remember in 1928, if I recall correctly, I sent him to the hospital in 1928. During the various times I examined him for the

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