Woodmen of the World Life Ins. Soc. v. Phillips

• Decision Date: 26 February 1953
• Docket Number: 6 Div. 417
• Citation: 63 So.2d 707,258 Ala. 562
• Parties: WOODMEN OF THE WORLD LIFE INS. SOC., Inc. v. PHILLIPS.
• Court: Alabama Supreme Court

Page 707

63 So.2d 707

258 Ala. 562

WOODMEN OF THE WORLD LIFE INS. SOC., Inc. v. PHILLIPS.

6 Div. 417.

Supreme Court of Alabama.

Feb. 26, 1953.

Rehearing Denied March 26, 1953.

Wm. B. McCollough, Birmingham, for appellant.

J. Robt. Huie and J. Terry Huffstutler, Birmingham, for appellee.

MERRILL, Justice.

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

The complaint as amended consists of one count. Defendant entered two pleas of the general issue and five special pleas to the complaint. Upon the pleas the plaintiff joined issue.

The defense rests upon the theory that the insured was not in sound health at the time of the delivery of the policy, contrary to the warranties 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 the insured in his application for the policy sued on, and the said disease or illness materially increased the risk of loss, or that the misrepresentations by the insured were made with actual intent to deceive. Code 1940, Title 28, section 234.

The insured, Reese Phillips, signed the application for insurance at his home on February 3, 1950, and present at that time, other than the insured, were his wife (appellee), a neighbor and Herman Black, the agent for the society. The application was sent to the home office of the society by Black, and he testified that the society returned it requesting a medical examination. Black took the papers to Mr. Phillips who stated that he did not have time to go to town for a medical examination that day but would go later. A few days later Mr. Black, with the district superintendent of the society, called on Mr. Phillips who then stated that he had not gone to see the doctor and if it was going to cause him that much trouble he did not want the insurance and asked that his first premium be refunded to him. He was told that the premium had been sent to the home office with the application. Later Mr. Black and the district superintendent made a trip to Montgomery, Alabama, and talked to the state manager for the society concerning the application. On March 6, 1950, the policy was issued without a medical examination. Some time later Mr. Phillips became ill and, on May 9, 1950, he was admitted to the Jefferson-Hillman Hospital in Birmingham, Alabama, where he died on May 11, 1950.

The doctor, who testified for the defendant, examined Mr. Phillips when he was brought to the hospital and signed the death certificate two days later. He testified that in his judgment the insured had had high blood pressure for six months prior to the date of his examination on May 9th. He had never seen Mr. Phillips previous to his entry in the hospital on that date. Two neighbors of the insured testified that they had known the insured for about fifteen years, and did not know of any illness or sickness he had had preceding his last, and that he had worked practically every day on his farm. This testimony was supported by that of the wife of insured. The defendant relied upon the testimony of the physician who examined Mr. Phillips when he was brought to the hospital, the hospital record and depositions of the secretary and medical examiner of the defendant society.

The jury found in favor of the plaintiff. Defendant filed a motion for a new trial which was overruled.

Appellant has forty-seven assignments of error. Assignments 2, 11, 12 and 13 complain that the statement contained in the proof of loss and the death certificate, showing the cause of death to have been malignant hypertension, was conclusive against plaintiff, since proof of loss signed by the plaintiff, the physician and by the secretary of the local lodge stated that the cause of death was malignant hypertension, and appellant cites the following from Liberty National Life Ins. Co. v. Tellis, 226 Ala. 283, 146 So. 616, 617: 'So considered, therefore, the death certificate disclosed the insured died from a disease of the heart, and, there being no competent evidence by way of contradiction or avoidance, its recitals become conclusive against the beneficiary'. This has long been the law.

However, the physician who signed the death certificate stated that he did not know at that time an autopsy would be performed; that his death certificate would not have been the same had he had the autopsy report before him because, according to the autopsy findings, the high blood pressure was a symptom and there was a kidney disease which was primarily responsible for the high blood pressure. We can think of no more competent evidence to contradict or avoid the statement in the death certificate than that of the same physician who signed the death certificate, who later had access to the autopsy report and additional facts on which to base his testimony.

Assignments 3, 4, 5, 9, 12, 18 and 35 complain of the failure of the trial court to give certain charges. In every instance these charges were covered by the oral charge to the jury or were properly refused. One charge complained of was actually given by the court. We find no error as to these assignments.

Assignments 19, 20, 21, 22 and 39 complain that the trial court sustained objections to answers to certain numbered interrogatories propounded by the defendant to the secretary and to the medical examiner of the defendant society. These assignments fail for two reasons: (1) assignment 22 complains that the court sustained the objection of plaintiff's counsel's objection to answers to interrogatory 16. Actually the court overruled the objection and plaintiff excepted. (2) The plaintiff withdrew all objections to the depositions and the exhibits thereto, and they were, quoting the trial court, 'admitted in evidence in their entirety'.

Assignments 23 through 34, inclusive, pertain to the verdict. The verdict rendered by the jury was as follows: 'We, the jury, find for the plaintiff and assess her damages Five Thousand Dollars ($5,000.00) plus 6% annually'.

The court, notwithstanding the motion made by defendant's counsel for a judgment non obstante veredicto, rendered a judgment as follows:

'It is ordered and adjudged by the court that the plaintiff have and recover of the defendant the sum of Five Thousand & 00/100 Dollars plus 6% interest annually, which said interest amounts to Four Hundred Eighteen & 17/100 ($418.17) Dollars, the total sum of said judgment, including interest, being in the amount of Five Thousand, Four Hundred Eighteen & 17/100 ($5,418.17) Dollars, as ascertained and assessed by the jury upon the proof adduced upon the trial of this cause, besides all costs herein accrued, for which execution may issue.'

We do not find where this particular question has been decided by the appellate courts of this State. A thorough discussion of the principles concerning verdicts is contained in the case of W. T. Rawleigh Co. v. Hannon, 32 Ala.App. 147, 22 So.2d 603. The case of Wilson v. Federal Land Bank of New Orleans, 230 Ala. 75, 159 So. 493, 496, quotes from City of Birmingham v. Hawkins, 196 Ala. 127, 72 So. 25, where it was said:

'General verdicts are always sufficient, if they respond in substance to every material fact involved in the issue. And doing this, the court commits no error by putting the verdict in form. The verdict may be * * * written or oral, and it is always...