Sovereign Camp, W. O. W. v. Gibbs, 114 So. 915

Sovereign Camp, W. O. W. v. Gibbs

114 So. 915 | Ala. | 1927

There was no error in sustaining the objections to the interrogatories to Dr. Cloyd, the defendant's "Sovereign Physician," or, if there was as to some, it was without injury, as defendant got the substantial benefit of same under answers to other interrogatories. As to what the witness would have done had he gotten other or different information as to the insured's health was but a speculative conclusion.

There was no error in sustaining the objection to interrogatory 11 to witness Yates. In the first place it called for the reason or motive of the witness; and, second, the only contention of counsel as to its relevancy was that it tended to disapprove the plaintiff's replication, which said replication was charged out by the trial court.

Charges 1 and 2, given at the request of the plaintiff, asserted the law. Sovereign Camp, W. O. W., v. Hutchinson,214 Ala. 540, 108 So. 520. If abstract or misleading as argued in brief of counsel, this may have justified a refusal, but did not render the giving of same reversible error.

It is next insisted that the defendant should have had the general affirmative charge because its special pleas, or some of them, were proven beyond dispute. In this we are not dealing with a motion for a new trial or the weight of the evidence, but whether or not there was a conflict or inference from which a conflict could be reasonably drawn. There was no doubt but what the insured misstated the fact that he had not previously *110 consulted a physician within the time prescribed, but as to whether the misrepresentation was made with the intent to deceive or increased the risk was a question for the jury. There was considerable evidence tending to show that the diagnosis was of such a malady as tended to increase the risk, but, unless the accused knew it, which was a question for the jury, he did not make the misstatement with the intent to deceive. As to whether or not the misstatement was as to something that increased the risk was a question for the jury. The examining doctor certified to his good health at the time the application was made, and, whether this was true or not, it tended to show that the ailments disclosed on previous treatments did not exist or had been cured. Beason v. Sov. Camp, 208 Ala. 276, 94 So. 123.

The case of Miller v. Metropolitan Life Ins. Co., 214 Ala. 4,106 So. 335, is unlike the present case, as the insured there had cancer, and had been operated on for it within twelve months, and the court took judicial notice that cancer was such a disease as tended to shorten life, and materially increase the risk.

The judgment of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.