Opinion
7 Div. 215.
September 28, 1933.
Certiorari to Court of Appeals.
Petition of the Mutual Life Insurance Company of New York for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Mutual Life Insurance Co. v. Beulah B. Mankin, 25 Ala. App. 501, 149 So. 873.
Writ denied.
See, also, 223 Ala. 679, 138 So. 265.
Bradley, Baldwin, All White, S. M. Bronaugh, and Kingman C. Shelburne, all of Birmingham, for petitioner.
Having held that judicial notice would be taken of the fact that syphilis, as suffered by insured, would increase the risk of loss, the Court of Appeals should have set aside the verdict as contrary to the weight of the evidence. American Nat. Ins. Co. v. Rosebrough, 207 Ala. 538, 93 So. 502. Counsel argue other questions not necessary to be here set out.
Culli Culli, of Gadsden, opposed.
The writ should be denied; the law of the case has been fully settled by the Supreme Court on former appeal. Mutual L. I. Co. v. Mankin, 223 Ala. 679, 138 So. 265. The opinion of the Court of Appeals is too favorable for the petitioner. National L. A. I. Co. v. Baker, 226 Ala. 501, 147 So. 427. As to review by the Supreme Court on certiorari to the Court of Appeals, see Ex parte Hale, 225 Ala. 267, 142 So. 589.
The only question specifically dealt with by the Court of Appeals was that raised by the appellant's ninth assignment of error — the sustaining of plaintiff's objection to an excerpt from page 281 of Sir William Osler's "The Principles and Practice of Medicine," dealing with "Syphilis and Life Insurance" — the entire volume, as the opinion states, had been offered in evidence by the defendant and allowed by the court over the objection of the plaintiff. This, of course, as the Court of Appeals correctly holds, rendered the sustaining of the objection to the excerpt innocuous.
The other questions argued here are not so presented as that they are reviewable. Campbell v. State, 216 Ala. 295, 112 So. 902; Ex parte Hale (Hale v. Southern Ry. Co.), 225 Ala. 267, 142 So. 589.
We, however, are not in agreement with the opinion of the Court of Appeals, in so far as it holds that the courts will take judicial knowledge that syphilis is a disease that will increase the risk of loss. Our cases are to the contrary. National Life Accident Ins. Co. v. Baker, 226 Ala. 501, 147 So. 427; Louisiana State Life Ins. Co. v. Phillips, 223 Ala. 5, 135 So. 841.
The writ is denied.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.