108 So. 40 | Ala. | 1926
Action on a policy of life insurance.
Defendant filed numerous pleas setting up breaches of an agreement into which the insured entered in order to induce defendant to issue the policy. For further plea defendant alleged the matters and things shown by the plea numbered 22, which is set out in the statement. The court, on plaintiff's motion, struck this plea numbered 22 on the ground that it came too late. It is not *449
clear upon the record just what relation in point of time the plea in question bears to the other pleading in the case, but, however that was, it appears that the proposed plea was lacking in merit, and that it was incapable of amendment so as to make of it a good plea. Moreover, we must presume that it came at a time when the court had a discretion to deny its consideration on the ground stated for the ruling. We cannot, therefore, say there was error. Jones v. Ritter,
It is argued that the trial court erred in overruling defendant's demurrer to special replication A. This replication was to the effect that the agreements or false statements alleged in certain pleas were not incorporated by reference or otherwise in the policy. This was a good replication under our statute. Code 1923, § 8371; Empire Life v. Gee, 55 So. 166,
Under the pleadings it was competent and material for defendant to show in what condition of health insured was at the date of her application and at the date on which the policy was issued. The witness Dr. Searcy was a medical expert and competent to answer defendant's question "whether tuberculosis was more ravaging among the colored race than among the white"; but the comparison defendant thus sought to set up was foreign to any issue in the case, and the court properly sustained plaintiff's objection to the question and excluded the witness' affirmative answer. Insured was a colored woman, true, but the only proper issue as to her state of health was whether tuberculosis increased the risk of loss in her case. That question the expert witness answered in the affirmative, and, besides, in agreement with the court's judicial knowledge of the subject. Brotherhood of Railway Clerks, etc., v. Riggins,
We feel constrained to hold that the court committed reversible error in overruling defendant's motion for a new trial. Pleas 5, 7, 11, and 13 (the sufficiency of which we do not consider, because ruled in favor of appellant [defendant]) alleging, in short, that insured, in breach of her "agreement," made to induce defendant to issue the policy in suit, had, prior to her application therefor, suffered from (in two of the mentioned pleas) tuberculosis, and (in two other of the said pleas) from pleurisy, both which increased the risk of loss to the defendant. These pleas were proved beyond peradventure; nor was there proof of the special replications, one or all. We do not mean to say that insured was guilty of actual fraud, for fraud was not alleged in the pleas. In this respect the case is different from that shown in Miller v. Metropolitan Life Ins. Co. (Ala. Sup.)
May we not be permitted to suggest that, while in order to avoid unnecessary repetition and prolixity it is often proper for one pleading to refer specifically to another (Mattingly v. Houston, 52 So. 78,
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.
