122 So. 621 | Ala. | 1929
There was no error in overruling objection to the question: "What was the condition of her (assured's) health when the policy was issued?" It was a question calling for the obvious facts from one who was intimately associated with assured, that it appeared or seemed to be good, apparent to the senses of an ordinary observer. Sovereign Camp Woodmen of the World v. Hoomes (Ala. Sup.)
The case was for the jury who had inferences from the evidence that the physician diagnosed the fatal ailment of assured about the early part of September, 1927, and not before. This was some time after delivery of the policy of date of August 8th, and the physician did not say she was so affected in August.
The case of Southern Life H. Ins. Co. v. Morgan,
Thus the only controverted fact of whether or not assured had tuberculosis on August 8, 1926, the date of her insurance contract with appellant, was duly submitted; as clearly defined and submitted to the jury by the given instructions. The physician states that he came to the conclusion of her condition "at the time" that he gave the certificates for sick benefits. He does not locate the time; the plaintiff's evidence fixes that time in September and not August.
It is true that courts take judicial knowledge that one afflicted with tuberculosis is not in sound health and material to the risk, within the meaning of insurance contracts (Brotherhood, etc., v. Riggins,
Refused charges 3, 13, and 15 were respectively embraced in the given charges.
There was no error in overruling the motion for a new trial.
Affirmed.
ANDERSON, C. J., and SAYRE and FOSTER, JJ., concur.