The verdict is contrary to the great weight and preponderance of the evidence, and should not be permitted to stand. Liberty Nat. Life Ins. Co. v. Trammell, 33 Ala. App. 275, 33 So.2d 479; Id., 35 Ala. App. 300, 51 So.2d 167. The verdicts rendered in the previous trials were not rendered upon substantially the same evidence.
A provision in a policy of insurance that insured must be alive and in sound health on the date of issue, is a valid and binding part of the contract of insurance. Liberty Nat. Life Ins. Co. v. Trammell, 33 Ala. App. 275, 33 So.2d 479; Brown-Service Ins. Co. v. Wright, 32 Ala. App. 578, 28 So.2d 318; Champion v. Life Cas. Ins. Co. of Tennessee, 25 Ala. App. 101, 141 So. 363; Life Ins. Co. of Virginia v. Newell, 223 Ala. 401, 137 So. 16. Even though insured does not know that he is afflicted with a fatal disease, the warranty as to sound health is breached if, in fact, on the date of issue of the policy he was so afflicted. Liberty Nat. Life Ins. Co. v. Trammell, supra; Aetna Life Ins. Co. v. Norflett, 232 Ala. 599, 169 So. 225. Courts judicially know that a person afflicted with cancer is not in sound health. Liberty Nat. Life Ins. Co. v. Trammell, supra; Miller v. Metropolitan Life Ins. Co., 214 Ala. 4, 106 So. 335; Metropolitan Life Ins. Co. v. Chambers, 226 Ala. 192, 146 So. 524; Aetna Life Ins. Co. v. Norfleet, supra; Champion v. Life Cas. Ins. Co., supra. Opinion of expert based on laboratory tests and personal examination, when uncontradicted, entitled defendant to affirmative charge with hypothesis. Grabo
Kennedy v. Lyric Theatre Co., 213 Ala. 153, 104 So. 274; Priebe v. Southern R. Co., 189 Ala. 427, 66 So. 573. Cancer is judicially known to increase the risk of loss under a policy of life insurance; and where insured is suffering from cancer this breached the provision that the policy should not take affect on date of issue unless insured is then alive and in sound health, regardless of whether or not insured knew such condition to exist. Liberty Nat. Life Ins. Co. v. Trammell, 33 Ala. App. 275, 33 So.2d 479; Id., 250 Ala. 159, 33 So.2d 483. When such a provision is written in or made a part of the policy, no agent whose authority is to solicit and deliver policies can waive it.
"However, it has been held that there are some conditions which increase risk of loss as a matter of law." Clark, 465 So.2d at 1139; Liberty National Life Insurance Co. v. Trammel, 33 Ala.App. 275, 33 So.2d 479 (1947) (cancer); Ginsberg v. Union Central Life Insurance Co., 240 Ala. 299, 198 So. 855 (1940) (misstatement of age); Camden Fire Insurance Association v. Landrum, 229 Ala. 300, 156 So. 832 (1934) (possession of property by tenant other than the one insured under a fire insurance policy); Gunn v. Palatine Insurance Co., 217 Ala. 89, 114 So. 690 (1927) (misrepresentation of extent of ownership interest); Crumpton v. Pilgrim Health & Life Insurance Co., 35 Ala.App. 363, 46 So.2d 848 (1950) (Hodgkin's disease); see also Alfa Life Ins. Corp. v. Lewis, 910 So.2d 757, 762 (Ala. 2005). In Clark, the insureds applied to Alabama Farm Bureau for a farm-owner policy.
Under ยง 27-14-7, it is not necessary that the insured have made the misrepresentation with an intent to deceive; even if innocently made, an incorrect statement that is material to the risk assumed by the insurer or that would have caused the insurer in good faith not to issue the policy in the manner that it did provides a basis for the insurer to avoid the policy. See, e.g., Nationwide Mut. Fire Ins. Co. v. Pabon, 903 So.2d 759 (Ala. 2004); Taylor v. Golden Rule Ins. Co., 544 So.2d 932 (Ala. 1989); Liberty Nat'l Life Ins. Co. v. Trammell, 33 Ala.App. 275, 33 So.2d 479 (1947) (if the insured at the time of the issuance of this policy was suffering from a disease that increased the risk of loss, the warranty in the policy as to sound health was breached, regardless of whether the insured knew of the presence of such disease); ยง 27-14-7, Ala. Code 1975. To invoke ยง 27-14-7, Ala. Code 1975, an insurer need only establish that a misrepresentation in the application was a material contributing influence that induced the insurer to issue the policy.
Duggan v. Duggan, 227 Ala. 92, 148 So. 844; Commercial Credit Co. v. Tarwater, 215 Ala. 123, 110 So. 39. Presumption in favor of trial court does not obtain where there is no material conflict in the evidence. Liberty Natl. Life Ins. Co. v. Trammel, 33 Ala. App. 275, 33 So.2d 479; Henderson v. Henderson, 228 Ala. 438, 153 So. 646. Walker, Hill, Gullage, Adams Umbach, Opelika, for appellees, Ocie Levett, Willie Lue Levett, R. F. Newman, Wallace Farr, R. F. Newman, Inc. and Alabama Wood Products, Inc.
U.S.C.A. Const. Art. 4, ยง 1; State v. Black, 239 Ala. 644, 196 So. 713; Kugle v. Harpe, 234 Ala. 494, 176 So. 617; Forbes v. Davis, 187 Ala. 71, 65 So. 516. Where there is no material conflict in evidence, presumption in favor of conclusion of trial judge who hears testimony does not obtain. Haden v. Boykin, 259 Ala. 504, 66 So.2d 708; Liberty Natl. Life Ins. Co. v. Trammell, 33 Ala. App. 275, 33 So.2d 479; Id. 250 Ala. 159, 33 So.2d 483. Without question, the controlling inquiry in awarding the custody of children is the welfare of the children.
The Alabama courts have been consistent in following the rule in the Barnes case, supra. See Haden v. Boykin, 259 Ala. 504, 66 So.2d 708; Liberty Nat. Life Ins. Co. v. Trammell, 33 Ala. App. 275, 33 So.2d 479, certiorari denied 250 Ala. 159, 33 So.2d 483; Id., 35 Ala. App. 300, 51 So.2d 167, reversed 255 Ala. 1, 51 So.2d 174, certiorari denied 255 Ala. 236, 51 So.2d 176; Department of Industrial Relations v. Savage, 38 Ala. App. 277, 82 So.2d 435. But we need not go so far afield, because this court in Washakie Livestock Loan Co. v. Meigh, 47 Wyo. 161, 33 P.2d 922; 50 Wyo. 480, 491, 492, 62 P.2d 523, 526, 107 A.L.R. 1063, in reversing the finding and judgment of the trial court, considered the evidence which was available to that court in making its decision, and in doing so said:
v. Embry, 219 Ala. 623, 123 So. 27; Western Union Tel. Co. v. Tatum, 35 Ala. App. 478, 49 So.2d 673; Id., 255 Ala. 13, 49 So.2d 678; Montgomery-Moore Mfg. Co. v. Leeth, 2 Ala. App. 324, 56 So. 770; Killian v. Webber, 36 Ala. App. 254, 54 So.2d 634. Textbooks on mental diseases and extracts therefrom are admissible in evidence. Stoudenmeier v. Williamson, 29 Ala. 558; City of Dothan v. Hardy, 237 Ala. 603, 188 So. 264, 122 A.L.R. 637; Anderson v. State, 209 Ala. 36, 95 So. 171; Rosenthal v. U.S., 8 Cir., 45 F.2d 1000, 78 A.L.R. 1415. Answer to question propounded to one physician as to whether or not other doctors changed their diagnoses would be hearsay. Mixon v. Pennington, 204 Ala. 347, 85 So. 562; United States v. Buck, 5 Cir., 70 F.2d 1007. False representations in applications as to previous disease defeat recovery on policy if made with intent to deceive or if matter misrepresented materially increased risk of loss. Sovereign Camp, W.O.W. v. Fischer, 236 Ala. 494, 183 So. 653; Liberty Nat. Life Ins. Co. v. Trammell, 33 Ala. App. 275, 33 So.2d 479; Reliance Life Ins. Co. v. Sneed, 217 Ala. 669, 117 So. 307. Physician may state in comparison of other persons with whom he came in contact professionally his opinion of mental capacity and strength of a certain person. Sloan v. Newman, 166 Ark. 259, 266 S.W. 257; 32 C.J.S. Evidence ยง 535, p. 254.
nt Ins. Co., Tex.Civ.App., 6 S.W.2d 195; New York Life Insurance Co. v. Anderson, 8 Cir., 66 F.2d 705; Massachusetts Protective Ass'n v. Cranford, 137 Miss. 876, 102 So. 171; Dorsey v. Prudential Ins. Co. of America, 124 W. Va. 100, 19 S.E.2d 152; New York Life Ins. Co. v. Miller, 65 App.D.C. 129, 81 F.2d 263; Folse v. Monroe, Tex.Civ.App., 190 S.W.2d 604. Death certificates are admissible in evidence as prima facie or presumptive evidence of the cause of death but not of the conclusion or opinion of the certificate maker as to the means of injury, that is, whether accidental, suicidal or homicidal, in cases of death by violence. Metropolitan Life Ins. Co. v. Parks, 210 Ala. 261, 97 So. 788; Bozicevich v. Kenilworth Mercantile Co., 58 Utah 458, 199 P. 406, 17 A.L.R. 346; Benefit Ass'n of Ry. Employees v. Armbruster, 221 Ala. 399, 129 So. 78; Liberty Nat. Life Ins. Co. v. Tellis, 226 Ala. 283, 146 So. 616; American Life Ins. Co. v. Williams, 234 Ala. 469, 175 So. 554, 112 A.L.R. 1215; Liberty Nat. Life Ins. Co. v. Trammell, 33 Ala. App. 275, 33 So.2d 479. A copy of a death certificate certified by the County Health Department is admissible under Title 7, Section 386, but not under Title 22, Section 42 of the Code of Alabama, 1940. Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837. The requirement of Title 22, Sections 25 and 26, Code of Alabama of 1940, that the means of injury be recorded as probable only, clearly indicates that it was the legislative intent that the statement of the means of injury was a mere conclusion or opinion and not a statement of fact. Equitable Life Ins. Co. v. Stinnett, 6 Cir., 13 F.2d 820; Heffron v. Prudential Ins. Co., 137 Pa. Super. 69, 8 A.2d 491. An objection to evidence on grounds stated has the effect of waiving all other grounds of objection to that evidence. Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212; Grissom v. Dahart Ice Cream Co., 34 Ala. App. 282, 40 So.2d 333; Id., 252 Ala. 235, 40 So.2d 339. There is a legal presumption against death by suicide, substantive and evid