Fraternal Aid Union of Lawrence, Kan. v. Monfee

149 So. 845 | Ala. | 1933

The chief insistence of error upon this appeal is upon the action of the trial court in not granting appellant's motion for a new trial because the verdict was contrary to the great weight of the evidence; that is, that the great weight of the evidence supported its special pleas as to a misrepresentation by the insured as to her age, and which said misrepresentation was material and increased the risk and invalidated the policy under the terms of same, and under the statute, whether fraudulently made or not. Sovereign Camp, W. O. W. v. Hutchinson, 214 Ala. 540, 108 So. 520; Brotherhood, etc., v. Riggins, 214 Ala. 79, 107 So. 44.

After a careful consideration of all the evidence and resolving all presumptions in favor of the verdict under the rule laid down in Cobb v. Malone, 92 Ala. 630, 9 So. 738, we are constrained to hold that the preponderance of the evidence against the verdict is so decided as to clearly convince us that it was wrong and unjust. The insured, whether fraudulently or not, misrepresented her age to the extent of about eight years, which not only materially affected the premium to be paid, but which said misrepresentation also affected the risk.

The trial court erred in not granting the defendant's motion for a new trial, and the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

GARDNER, BOULDIN, and FOSTER, JJ., concur.