78 So. 792 | Ala. | 1918
This suit was for sick indemnity alleged to have accrued on a policy of insurance.
It has been declared that, where the evidence before the judge trying without a jury was developed ore tenus, or partly so, the finding in the trial court will not be disturbed unless that conclusion is plainly contrary to the great weight of the evidence. Ahlrichs v. Rollo,
The rule is otherwise where the court has erroneously excluded competent evidence. Dargan v. Harris,
A careful examination of the evidence convinces us that the judgment rendered was supported by the evidence. The suit was founded on two insurance contracts, executed by a mutual aid association, in which the association agreed to pay the assured a stipulated weekly indemnity in event of his sickness. The contracts contained the stipulation that the assured should give notice and make proof of sickness by the filing of the attendant physician's certificate, written upon the blanks furnished to members in the office of the association, and also the limitation: "But two weekly indemnity will be allowed for la grippe or disability resulting therefrom, in any twelve calender months."
Courts generally have declared that contracts of insurance will be liberally construed in favor of the assured, and that, if doubtful, they will be construed against the insurer. Union Cent. Relief Ass'n v. Johnson, 73 So. 816;2 Allen v. Standard Ins. Co., 73 So. 897;3 Empire Life Ins. Co. v. Gee,
Under the clause of said contracts limiting liability to two weekly indemnities, for sickness designated la grippe, or for disability resulting therefrom, in any 12 calendar months, the illness of the plaintiff being shown, the burden of proof devolved on the defendant to show that his illness was la grippe or resulted therefrom, with consequent disability to plaintiff, and that defendant's liability therefor, that is, to pay not exceeding two weekly indemnities for and during the given 12 calendar months, had been discharged as per contract conditions. This limitation of liability, however, is in the nature of a forfeiture, for the benefit of the assurer, and is defensive matter to be pleaded and proved by the defendant. Equitable Life Assur. Society v. Golson, supra; Continental Casualty Co. v. Ogburn, supra; 25 Cyc. 925 et seq.
The proof of sickness was made by giving the notice and filing the certificate of the attending physician, as per contract stipulations. That the certificate contained a declaration against interest as to the cause or nature of plaintiff's illness is not conclusive proof of the matter admitted. On the trial the plaintiff in such a case is not estopped to show that the misstatement in the proof as to the nature or cause of his illness was the result of mistake or ignorance, or was made under a misapprehension of the facts; that is, in the absence of facts *416
creating an estoppel, as that the assurer has changed its position to its detriment in reliance on the statement of facts contained in the proofs furnished by the plaintiff, the assured may show the truth, and that the erroneous statement thereof contained in the proofs was the result of ignorance, mistake, or misapprehension of the true facts. 4 Cooley's Briefs, p. 3433 et seq.; 2 May on Insurance, § 465; 29 Cyc. 150; 8 Rose's Notes (U.S. Rep.) 491, 493; 13 Am. Eng. Ency. Law (1st Ed.) 65; Knights Templars v. Crayton,
If there was a variance between the allegations and the proof, the court's attention was not called thereto in an appropriate way, as is required by the rule (175 Ala. xxi, No. 34). Bickley v. Porter,
Let the judgment of the circuit court be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.