Opinion
8 Div. 954.
November 10, 1927. Rehearing Denied December 22, 1927.
Appeal from Circuit Court, Madison County; James E. Horton, Judge.
C. H. Roquemore, of Montgomery, for appellant.
Proof that the insured was afflicted with cancer was proof that he was not in good health and that the disease increased the risk of loss. The affirmative charge should have been given for defendant. Miller v. Metropolitan L. I. Co., 214 Ala. 4, 106 So. 335.
R. E. Smith and Robert C. Brickell, both of Huntsville, for appellee.
There was no plea of tender, and no tender could have affected the rights of plaintiff unless accepted by her. Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897. The allowance of additional pleas was discretionary with the trial court. Mass. Mutual L. I. Co. v. Crenshaw, 195 Ala. 263, 70 So. 768. It is not every consultation with a physician, failure to disclose which will vitiate a policy. Brown v. Metropolitan L. I. Co., 65 Mich. 306, 32 N.W. 610, 8 Am. St. Rep. 894; Franklin L. I. Co. v. Galligan, 71 Ark. 295, 73 S.W. 102, 100 Am. St. Rep. 73; Mutual L. I. Co. v. Snyder, 93 U.S. 393, 23 L.Ed. 887; W. O. W. v. Bass, 207 Ala. 558, 93 So. 537; Brotherhood v. Riggins, 214 Ala. 79, 107 So. 44.
Action on a policy (certificate) of life insurance issued by a fraternal benefit association. Insured died of a mediastinal (relating to the space in the chest between the pleural sacs of the lungs) cancer about three months after he applied for insurance. The defense was based upon alleged breaches of warranty to the effect that at the time of the delivery of the policy insured was in good health and had not suffered from cancer or other disease or ailment tending to shorten life, and that he had fraudulently misrepresented certain facts — to speak generally — concerning the history of his health.
Plaintiff was the beneficiary named in the policy in suit and was the surviving wife of the insured. There was no error in overruling defendant's offer to show that, after the death of insured, defendant offered to return to plaintiff the money (sic) which insured had paid to defendant in the way of premiums. No plea raised any question of the sort intimated by the evidence offered, nor could the matter inquired about have been material in the cause unless the offer to return had been accepted by plaintiff. But it was not shown nor offered to be shown that plaintiff had accepted the money. The form of the question implied that she had not accepted.
Nor did the court err in sustaining plaintiff's objection to defendant's question to the witness Peeden as to whether defendant issued the policy in suit on the application of insured which was put in evidence. Peeden was clerk of the local camp of the Woodmen of the World, the insurer, which had its general office, where such matters were finally determined, in the state of Nebraska. It did not appear that the witness had knowledge at first hand. However, the application was in evidence, nor can there be any doubt upon the record that it was the application on which the policy was issued. All parties so treated it.
Nor was there error in sustaining plaintiff's objection to defendant's question, referring, of course, to insured and the time of the issue of the policy, "Was he in good health at that time?" That would seem to call for the opinion of an expert. The witness was not an expert. Had the question asked for the appearance of the insured, no doubt the ruling would have been different. Am. Nat. Ins. Co. v. Rains, 215 Ala. 378, 110 So. 606.
It was immaterial whether the local clerk relied on insured's warranty as to health. That was the business of the home office; and the answer to the question designed to elicit the reliance of the witness, would, at least, have shown merely the undisclosed state of the witness' mind — incompetent under long-established rulings of this court. Western Union v. Cleveland, 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534, where many of the cases are noted.
What has been said will suffice to sustain the trial court's ruling against defendant's question to Peeden, "He was sick with the same disease he had on February 1st?" a date prior to the application for a policy.
There was no error in ruling against defendant's question to Dr. Wilson as to whether his previous affidavit was true. There was no purpose to impeach the witness, who had been called by defendant and was testifying in agreement with the affidavit. There was no question as to the previous proper use of the affidavit, nor was the anticipated statement of the witness at the trial otherwise competent.
It was within the judicial discretion, after the parties had introduced their evidence, to deny the right to file further pleas. Mass. Mut. Life Ins. Co. v. Crenshaw, 195 Ala. 267, 70 So. 768; Jones v. Ritter, 56 Ala. 270; Craig v. Pierson Lbr. Co., 179 Ala. 535, 60 So. 838. As said in the last-cited case:
"This discretion should be liberally exercised for the promotion of right and justice, but the action of the trial court" — we think we may properly interpolate, in the absence of a showing of abuse (not shown in this case) — "is not revisable on appeal."
So, likewise, there was no reversible error in denying to defendant the opportunity to write an explanatory charge after the jury had retired.
Appellant urges that the general charge requested by it should have been given. The entire record has been considered with due care. The questions at issue between the parties were, very clearly, as we think, related to matters in dispute in the evidence, and this charge was properly refused.
The judgment must be affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.