67 So. 263 | Ala. | 1914
The action is on a life insurance policy. The insurance company interposed 18 pleas— the general issue and 17 special pleas. The special pleas were of two classes; one class setting up false and fraudulent representations by the insured, made with the intent to deceive, in obtaining the policy, and the second class setting up false representations by the insured in obtaining the policy sued on, which representations, being false, increased the risk.'
The pleas were thus confessedly framed under each of the two alternatives contained in section 4572 of the Code, which section reads as follows:
“No written or oral misrepresentation, or warranty therein made, in the negotiation of a contract or policy of life insurance, or in the application therefor or proof of loss thereunder, shall defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increase the risk of loss.”
A great number of pleas, similar to the ones in question, were construed with reference to this and other sections of the Code in the cases of Insurance Co. v. Allen, 174 Ala. 517, 56 South. 568, and Insurance Co. v. Gee, 171 Ala. 435, 55 South. 166. It is therefore unnecessary to restate the rules as to the sufficiency of such pleas in cases like this ; it being both apparent and conceded that the pleas were proved with special reference to the pleas and the opinions and decisions in those two cases.
The trial court sustained demurrers to pleas 2, 6, 10, 12, and 14, and overruled demurrers to pleas 3, 4, 5, 7, 8, 9,11,13, 15,17, and 18.
There was no error in refusing the general affirmative charge to the defendant, upon the whole case, or as to any one of the many pleas. The mere fact that insured died of consumption did not prove that he had the disease when he was insured. The evidence falls far short of showing that he did have such disease, or any other disease, when he made the application for insurance. The proof as to any one of the pleas was clearly a question for the jury.
In this state of the record we cannot say that there was any error in the rulings as to the letter or as to the claim for indemnity under the accident insurance policy, or any error in declining to allow the defendant to prove by the witness Stringfellow whether or not physicians were consulted when applications reached the medical department of the insurance company in New York, and that the medical examiner would in time write the physicians shown to have been consulted. This was res inter alios acta.
We find no error and the judgment must be affirmed.
Affirmed.