Royal Ins. Co. v. Story

40 So. 2d 724 | Ala. | 1949

The petition for certiorari to the Court of Appeals challenges the opinion of that court in respect to its holding (1) that the provision of the insurance policy that "this policy shall be void if the Insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof or in case of any fraud, attempted fraud or false swearing by the Insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss," did not apply to false statements by the insured in his testimony in the trial of the case; and (2) in holding that the verdict of the jury was not contrary to the weight of the evidence.

On a careful consideration of the case, we have concluded with the opinion of the Court of Appeals.

In respect to the first ground argued for error, it is conceded that there is a conflict of authority, but the better-reasoned cases, as we view them, affirm the conclusion of the Court of Appeals. Joyce on Insurance, 2d Ed., Vol. 5, § 3344, at p. 5554; Couch's Cyclopedia of Insurance Law, Vol. 7, p. 5516, § 1557; Insurance Companies v. Weides, 81 U.S. 375, 14 Wall. 375, 20 L.Ed. 894; Goldberg v. Provident Washington Ins. Co., 144 Ga. 783, 87 S.E. 1077; Third National Bank v. Yorkshire Ins. Co., 218 Mo. App. 660, 267 S.W. 445; Deitz v. Providence Washington Ins. Co., 33 W. Va. 526, 11 S.E. 50, 25 Am.St.Rep. 908; American Alliance Ins. Co. v. Pyle,62 Ga. App. 156, 8 S.E.2d 154; Hall v. Merrimack Mutual Fire Ins. Co.,91 N.H. 6, 13 A.2d 157.

The second challenge for error is manifestly untenable, since we will not review the findings of the Court of Appeals on the question of the weight of the evidence. Ex parte Wetzel,243 Ala. 130, 8 So.2d 824; Consford v. State, 200 Ala. 23,75 So. 335.

Writ denied.

BROWN, LIVINGSTON, and STAKELY, JJ., concur.