117 So. 307 | Ala. | 1928
This court has often considered and stated the distinction between warranties which are contractual terms of a policy of insurance, and usually promissory in form, and representations, which are matters of inducement merely, and usually relate to presently existing facts or conditions. Ala. Gold Life Ins. Co. v. Johnston,
It is also held that a condition precedent to the operation of the policy, such as is set out in pleas 19 and 20 herein, is in legal effect a warranty. Mut. Life Ins. Co. v. Mandelbaum,
Tested by these principles, the misrepresentations charged in each of the special pleas, except 19 and 20, were not warranties, and are governed by the rules prescribed for the pleading of misrepresentations as fraudulent inducements to contract: (1) That the representations were false; (2) that they were intrinsically relevant to the subject-matter; and (3) that the other party relied upon them to his prejudice. In general, actual intent to deceive is not, in this state, an element of actionable or defensive fraud. Code, § 8049; Davis v. Betz,
When, however, misrepresentations are *673
pleaded in defense to an action on a life insurance policy, it must also be alleged either that they were "made with actual intent to deceive," or that "the matter misrepresented increased the risk of loss." Code, §§ 8364, 8507; Mut. Life Ins. Co. v. Allen,
Pleas 1 to 18, excepting 14, 16, and 17, are all defective in failing to aver that defendant relied upon the misrepresentation pleaded. Pleas 17 and 21 were not subject to any ground of the demurrer, and the demurrer, as to them, was erroneously sustained. Plea 21 is substantially like 14 and 16, but plea 17 is substantially different from any other.
With respect to these misrepresentations, it should be observed that they need not be the sole inducement to the contract, nor the chief influence leading to action. It is enough if, as a contributory influence, they operate upon the mind and conduct of the other party to any material extent. Greil Bros. v. McLain,
Plaintiff's replications 3 and 4 were sustained, against demurrer, as good answers to defendant's pleas 19 and 20. These pleas set up a condition in the policy that it should not take effect unless, upon its delivery to the applicant, he was then in good health; and they aver a breach of this condition in that, at the time of said delivery, the applicant — the insured — was not in good health, but was suffering from a serious disease of the stomach, to wit (in 19), a cancer of the stomach, or (in 20) a cancer or ulcer of the stomach. In both pleas it is expressly averred that this disease increased the risk of loss under the policy. This condition precedent is, as we have noted, in legal effect a warranty.
We need not, on these pleadings, determine whether, if defendant had knowledge, when it delivered the policy, of the alleged state of the applicant's health, such delivery would have operated as a waiver of the warranty, and of the right to avoid the policy thereafter for its breach. See, however, 37 Corpus Juris, 526, §§ 260-262; Id. 535, § 267; Triple Link, etc., Ass'n v. Williams,
These replications aver an investigation of the insured's health by defendant's medical examiner, and (in 3) a "report of his conclusions" to defendant, or (in 4) a report that the applicant was "a fit subject for insurance." Neither of them avers any knowledge on the part of defendant or its medical examiner of the applicant's diseased condition. They are therefore wholly insufficient to show a waiver or avoidance of the warranty or its breach. Triple Link, etc., Ass'n v. Williams, supra; 37 Corpus Juris, 535, § 267. Apt grounds of demurrer pointed out this defect, and the overruling of the demurrers to these replications was prejudicial error.
As to the admissibility in evidence of the report of defendant's medical examiner upon the condition and insurability of the applicant, the authorities all agree that it is competent evidence either in support or in impeachment of the statements made in the application. 37 Corpus Juris, 625, § 423. And so it has been held by this court. Sov. Camp, W. 0. W., v. Gibbs, ante, p. 108,
It is competent for the parties to stipulate in the policy that the insurance company shall not be constructively charged with its medical examiner's knowledge of the falsity of the applicant's statements. Ward v. Met. Life Ins. Co.,
As to general agents of the company, it is the settled rule in this state, as in most others, that a stipulation in the policy that they have no authority to change its terms or waive any of its conditions or warranties, is without effect. Pope v. Glen Falls Ins. Co.,
But that question is not before us, and we, of course, do not decide it. Our decision is limited to the case of medical examiners, who are not contracting agents, and as to whom, very clearly, the immunity stipulated is not contrary to public policy.
What has been said will be a sufficient guide to the court on another trial.
For the errors noted, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur. *674
