Alabama Farm Bureau Mut. Cas. Ins. Co. v. Goodman, 279 Ala. 538, 188 So.2d 268; Michigan Mut. Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920. The burden was upon plaintiff to establish a prima facie case, before the burden shifted to defendant to prove special pleas. United Sec. L. I. Co. v. Sikes, 40 Ala. App. 677, 122 So.2d 289; Brotherhood of R. R. Trainmen, etc. v. Pemberton, 38 Ala. App. 647, 93 So.2d 797; Id., 265 Ala. 694, 93 So.2d 801. The giving of charges misplacing burden of proof is reversible error. Alabama Fert. Co. v. Reynolds Lee, 79 Ala. 497.
For other cases with similar holdings see Tatum v. Commercial Bank Trust Co., 193 Ala. 120, 69 So. 508; Stoer v. Ocklawaha River Farms Co., 223 Ala. 690, 138 So. 270; Dawson v. Dawson, 224 Ala. 13, 138 So. 414; Equitable Life Assur. Soc. of United States v. Brandt, 240 Ala. 260, 198 So. 595; Hall v. Proctor, 242 Ala. 636, 7 So.2d 764; Brotherhood of R. R. Trainmen Ins. Dept. v. Pemberton, 38 Ala. App. 647, 93 So.2d 797, cert. denied, 265 Ala. 694, 93 So.2d 801. Also see 134 A.L.R., p. 577; 22 Alabama Lawyer, p. 24; 24 Alabama Lawyer, pp. 364 et seq. We hold that the trial court did not err in sustaining those grounds of the demurrer which took the point, in effect, that Count Five does not show that a cause of action for wrongful death based upon breach of warranty can be maintained under the laws of Georgia.
Brobston Brobston, Bessemer, for appellee. The burden of proof is on the insurer to show that representations by the insured were false and made with intent to deceive or were in respect to matters which increased the risk of loss. Woodmen of the World Life Ins. Society v. Phillips, 258 Ala. 562, 63 So.2d 707; Brotherhood of R. R. Trm. Ins. Dept. v. Pemberton, 38 Ala. App. 647, 93 So.2d 797. A misrepresentation made in an application for a policy of insurance will not defeat or void the policy unless it is made with the actual intent to deceive, or unless the matter misrepresented increased the risk of loss. Code of Ala. of 1940, Title 48, § 8; N.Y. Life Ins. Co. v. Zivitz, 243 Ala. 379, 10 So.2d 276; Liberty Natl. Life Ins. Co. v. Trammell, 255 Ala. 1, 51 So.2d 174. In determining when a disease is contracted, under the terms of an insurance policy the deciding factor ordinarily is the time when the disease manifests itself, although the medical cause existed prior to this time.
An agreement to adopt made in a foreign state could not be enforced in Alabama, so as to confer inheritance rights or rights of that nature upon the child, unless such agreement could be enforced to that extent in the state where made. Wall v. McEnnery's Estate, 105 Wn. 445, 178 P. 631; J. R. Watkins Co. v. Hill, 214 Ala. 507, 108 So. 244; Peake v. Yeldell, 17 Ala. 636; Western Union Tel. Co. v. Favish, 196 Ala. 4, 71 So. 183 The presumption is the common law prevails in those states of common origin with our own, and it rests upon the party resting his case upon a change or modification of the common law to plead and prove it. Brotherhoood of R. R. Trainmen Ins. Dept. v. Pemberton, 38 Ala. App. 647, 93 So.2d 797; Id., 265 Ala. 694, 93 So.2d 801; Equitable Life Assur. Soc. of United States v. Brandt, 240 Ala. 260, 198 So. 595, 134 A.L. R. 555; Inge v. Murphy, 10 Ala. 885; Birmingham Water Works Co. v. Hume, 121 Ala. 168, 170, 25 So. 806, 77 Am.St.Rep. 43; Acts 1935, 159; Code 1940, Tit. 27, § 9; Abney v. DeLoach, 84 Ala. 393, 4 So. 757. Rogers, Howard, Redden Mills, Birmingham, for appellee.
SIMPSON, Justice. Petition of Brotherhood of Railroad Trainmen Ins. Dept., Inc., for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in Brotherhood of Railroad Trainmen Ins. Dept. v. Pemberton, 93 So.2d 797. Writ denied.
The plaintiff having made out a prima facie case, the burden was on the defendant to prove one or more of its special pleas. Sovereign Camp, W. O. W. v. Sirten, 234 Ala. 421, 175 So. 539; Brotherhood of Railroad Trainmen Insurance Department v. Pemberton, 38 Ala. App. 647, 93 So.2d 797. Clearly, the defendant failed to establish by the evidence the defense that insured failed to disclose the existence of, and previous medical treatment for, the condition of chronic bronchitis.