Opinion
6 Div. 262.
October 5, 1933.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Action on a policy of life insurance by Andrew J. Monfee against the Fraternal Aid Union of Lawrence, Kan. From a judgment for plaintiff, defendant appeals.
Reversed and remanded.
Alvin M. Douglas and H. A. Entrekin, both of Birmingham, for appellant.
When the preponderance of the evidence against the verdict is so decided as to involve the conviction that it is wrong and unjust, it is the duty of the trial court to set it aside and award a new trial. Birmingham Nat. Bank v. Bradley, 116 Ala. 142, 23 So. 53; Bureau of Nat. Literature v. Griffin, 19 Ala. App. 657, 100 So. 77; So. Ry. Co. v. Lollar, 135 Ala. 375, 33 So. 32; Birmingham Ry., L. P. Co. v. Owens, 135 Ala. 154, 33 So. 8; Gassenheimer v. Western Ry. of Alabama, 175 Ala. 319, 57 So. 718, 40 L.R.A. (N.S.) 998; Edmonds v. Schreiber, 22 Ala. App. 24, 111 So. 755; Carraway v. Graham, 218 Ala. 453, 118 So. 807, 811. Where an insurance certificate shows on its face that it is based on the application, answers in which are warranted to be true, a misstatement of age is a warranty, increases the risk of loss, and defeats the policy. Brotherhood, etc., v. Riggins, 214 Ala. 79, 107 So. 44; Sov. Camp v. Hutchinson, 214 Ala. 540, 108 So. 520; Empire Life Ins. Co. v. Gee, 171 Ala. 435, 55 So. 166; Alabama Gold Life Ins. Co. v. Johnston. 80 Ala. 467, 2 So. 125, 59 Am. Rep. 816; Hunt v. Preferred Acc. Ins. Co., 172 Ala. 442, 55 So. 201; Kelly v. Life Ins. Clearing Co., 113 Ala. 453, 21 So. 361.
B. F. Smith, of Birmingham, for appellee.
Where there is evidence tending to prove averments of the complaint and on some of the material averments the testimony is in direct conflict, by positive evidence or clear inference therefrom, it is not error to overrule a motion for new trial. Corona Coal Co. v. Sexton, 21 Ala. App. 51, 105 So. 716; Martin v. Manning, 207 Ala. 360, 92 So. 659; Ala. Power Co. v. Hall, 212 Ala. 638, 103 So. 867; Alabama S. W. Co. v. Thompson, 166 Ala. 460, 52 So. 75; Yolande C. C. Co. v. Norwood, 4 Ala. App. 390, 58 So. 118, 119; Winter v. Judkins, 106 Ala. 259, 17 So. 627; Fulwider v. Jacob, 221 Ala. 124, 127 So. 818. Where the evidence is conflicting on the only point in issue, it is not error to overrule a motion for new trial. Deming Co. v. Bryan, 2 Ala. App. 317, 56 So. 754; Terrill v. Walker, 5 Ala. App. 535, 59 So. 775.
The chief insistence of error upon this appeal is upon the action of the trial court in not granting appellant's motion for a new trial because the verdict was contrary to the great weight of the evidence; that is, that the great weight of the evidence supported its special pleas as to a misrepresentation by the insured as to her age, and which said misrepresentation was material and increased the risk and invalidated the policy under the terms of same, and under the statute, whether fraudulently made or not. Sovereign Camp, W. O. W. v. Hutchinson, 214 Ala. 540, 108 So. 520; Brotherhood, etc., v. Riggins, 214 Ala. 79, 107 So. 44.
After a careful consideration of all the evidence and resolving all presumptions in favor of the verdict under the rule laid down in Cobb v. Malone, 92 Ala. 630, 9 So. 738, we are constrained to hold that the preponderance of the evidence against the verdict is so decided as to clearly convince us that it was wrong and unjust. The insured, whether fraudulently or not, misrepresented her age to the extent of about eight years, which not only materially affected the premium to be paid, but which said misrepresentation also affected the risk.
The trial court erred in not granting the defendant's motion for a new trial, and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
GARDNER, BOULDIN, and FOSTER, JJ., concur.