135 So. 841 | Ala. | 1931
Lead Opinion
The bill as amended seeks in the alternative to meet section 8364 of the Code of 1923 by charging that the false misrepresentations were made with the actual intent to deceive or that the matter misrepresented increased the risk of loss. It is not questioned that the policy contains a provision of invalidity in case of said misrepresentations, and the appellant contends that the misrepresentations appear in the application and which was attached to or made a part of the policy contract as required by section 8371 of the Code of 1923. It appears that the application was in three parts, the first two parts being interrogatories to the applicant to be answered and signed by him, while the third part was a mere certificate to be filled out and signed by the examining physician and with which the applicant had nothing to do and with which he was not concerned, and which said third part could not form the basis of invalidity as it was not made a part of the policy contract as were parts one and two which were made so by photographic copies.
It seems that the complainant relies upon a misrepresentation in answering questions 17, 20, and 21 to part second of the application. It is sufficient to say that question 20 relates to matter contained in part 3 which has not been set out and made a part of the policy contract as required by section 8371 of the Code. Therefore the complainant must rest its right to relief upon false answers as to questions 17 and 21 and which are conceded to be inaccurate.
We think the evidence relieves the respondent of having made the misrepresentations with the actual intent to deceive as the uncontradicted testimony of Dr. Terry, the examining physician, shows that he himself filled out the answers without asking respondent the questions and that, while respondent signed the application, he did not read the same or have it read. Indeed, counsel for appellant does not seriously rely upon this theory of the case. It would seem, however, that notwithstanding this, he signed the application and received and kept the policy containing these questions and answers and that would amount to a warranty on his part of the truth of same.
It has been held by this court that every false warranty will not vitiate a policy contract; it must be as to some fact that would materially increase the risk. Mutual Life Ins. Co. v. Allen,
The complainant contends that the answers to questions 17 and 21 were false and that a true answer would have disclosed facts or matter that would have materially increased the risk; that, as a matter of fact, he had within two years previous been in a hospital and was suffering from and treated for syphilis, a disease that materially increased the risk. It may be conceded that he had syphilis when he went to the Birmingham General Hospital in 1926, though Dr. Payne said he was treated for chancroid, a different disease from syphilis, and which was local and not at all dangerous. The witness, however, would not swear that he did not have and was not treated by Dr. Gewin for syphilis. There is also much evidence, though hearsay and secondary in character, which strongly indicates that he had syphilis at that time, notwithstanding Dr. Payne may have thought he had a chancroid and treated him for that trouble. While this evidence was not primary or the best, it was let in without objection and, being competent, must be considered by this court and does not fall within the rule of exclusion by section 6565, new to the Code of 1923. Hill v. Hill,
Conceding that the respondent had syphilis when treated at the hospital in 1926, has the complainant shown that it was a disease of such character and had so far progressed as to materially increase the risk? This court does not judicially know that syphilis increases the risk of loss. Metropolitan Life Ins. Co. v. Goodman,
The decree of the circuit court is affirmed.
Affirmed.
SAYRE, THOMAS, and BROWN, JJ., concur.
Addendum
We are still of the opinion that question 20 cannot be considered in passing on the *9 validity of the policy as a warranty. It refers to the diseases set out in item 4 of part 3 of the application and examination, and said part 3 was not attached to or made a part of the policy as required by section 8371 of the Code. Nor can the insured be charged therewith by the acceptance and retention of the policy, which had question 20 attached, for the reason that the question does not indicate what disease is referred to without reference to item 4 of part 3 and which was not attached or made a part of the policy. Moreover, the defendant got the benefit of this in the other two questions discussed that he had syphilis, and it would defeat the policy if it materially increased the risk, but the weight of the evidence showed that he had been cured when the application was made.
We are taken to task for holding that the evidence showed that the insured was cured and are criticized for referring to the statement of Dr. Ward. As to its being regarded by Dr. Ward as a recent case, this statement was direct and has no element of hearsay. True, the statement to the father that he was cured or fit to go home was hearsay, but was not objected to and was relevant, though not the best evidence, and should not be excluded by this court under section 6565 of the Code of 1923. Hill v. Hill,
It may be that we did not consider the contention of counsel as to the fraudulent feature of the case as serious as counsel intended it to be, as we felt that the warranty feature was the more serious and meritorious; but we did consider and discuss the case from both angles, and we beg counsel's pardon for the expression that this point was not seriously insisted upon.
It is urged that we have ignored the case of Mutual Life Ins. Co. v. Allen,
Counsel for the appellant also insists that the insured accepted and retained the policy and, as questions 17 and 21 and the answers thereto were a part thereof, that he not only became bound thereby as warranties as held by the court, but as false statements, and that the policy was vitiated whether the said false statements did or did not increase the risk of loss, and our attention is called to certain cases on the subject, especially the case New York Life Ins. Co. v. Fletcher,
The application for rehearing is overruled.
SAYRE, THOMAS, and BROWN, JJ., concur. *10