132 Ala. 640 | Ala. | 1902
— This bill is prosecuted by Lehman and others, creditors of the estate of George T. Win ton, deceased, to enforce the payment by tlie insurance company of a policy of insurance issued by it, on the life of the debtor. The respondent, pleaded in bar of the relief sought, that Winton made application for said insurance, that, in his application is this provision : UI agree that the answers given herewith to the questions of the agent or examiner, which I declare, and warrant to be true, shall be the basis of my contract with the company; and respondent pleads * * *
We deem it unnecessary to pass upon other points made in argument against the sufficiency of the plea. We may remark, however, that forfeitures of policies of insurance by reason of the inaccuracy or falsity of answers to questions even when properly made warranties, is not favored by law, since the operation, of such warranties may be and frequently is to defeat the policy though neither, its issuance or the death of the assured may bear any relation to the fact concealed or inaccurately or falsely affirmed; and upon this and other considerations such warranties are strictly con-st™ ed against the insurer and liberally to the upholding of his liability under the policy. Hence it is held
In respect to the second and third assignments of breach, we suggest that the general averment of untruth refers alone to the answers affirmatively given, and is not supported by the specification, so> to speak. To illustrate: In the, second assignment it is averred that Winton in answer to the question: “IIoav often and for what have you sought medical advice during the past seven years, dates of each, duration, physician consulted?” said: Once for la grippe in February, 1891, Dr. J. E. Griggs, Birmingham, once for mumps in June, 1898, Dr. T. L. Ilobertson, and that the disorder continued in each instance for one week. Now it is this particular statement that is averred to be false, and the specification shows that this statement is not in fact challenged at all, but that the real complaint of nit- answer waj, not that it was untrue
in one aspect of the. case pi-escaitexl by the bill, the respondent insurance company is alleged to have paid a part of the money evidenced by the policy to the administrator of the deceased insured in collusion with him to defeat the claims of complainants and other creditors of Win ton. If this be true the payment was a waiver of the breaches of warranty sought to he sec up in the plea; and it follows that the plea presents no defense to that aspect of the bill, and of consequence no defense to the bill as a whole. If, however, the payment to the administrator was made by the company in good faith as a compromise settlement of the claim against it, the company honestly believing it had a right to' settle with the administrator, and the face value of the policy being scaled to the amount so [acid in recognition and on account of the company’s claim that it was not liable at all because of breaches of the insured’s warranties, as may he, the case1 consistently with another aspect of the case presented by the bill, the payment would not as matter of law constitute a waiver of the alleged breaches so far as the balance unpaid is concerned.
The decree of the chancery court holding the plea insufficient must be
Affirmed.