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National Life Accident Ins. Co. v. Stewart

Supreme Court of Alabama
May 30, 1929
122 So. 621 (Ala. 1929)

Opinion

6 Div. 326.

Argued May 9, 1929.

Rehearing Denied May 30, 1929.

Appeal from Circuit Court, Jefferson County; J. C. B. Gwin, Judge.

Mathews Mathews, of Bessemer, for appellant.

Witnesses should be required to depose as to facts, and should not be permitted to express their conclusions upon the facts. Birmingham S. R. Co. v. Vanderford, 217 Ala. 342, 116 So. 334; Brown v. Mobile Elec. Co., 207 Ala. 61, 91 So. 802; Sovereign Camp, W. O. W., v. Hutchinson, 217 Ala. 71, 114 So. 684; N.C. St. L. v. Yarbrough, 194 Ala. 162, 69 So. 582; Weller Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L.R.A. (N.S.) 1106; Anniston v. Ivey, 151 Ala. 392, 44 So. 48. In the absence of sound health in the insured, the policy never became effective. Murphy v. Metropolitan L. I. Co., 106 Minn. 112, 118 N.W. 356; Nat. L. A. I. Co. v. Puckett, 217 Ala. 110, 115 So. 12; Brotherhood v. Riggins, 214 Ala. 79, 107 So. 44. Courts take judicial knowledge that one afflicted with tuberculosis is not in sound health. Sou. L. H. I. Co. v. Morgan, 216 Ala. 529, 113 So. 540; Brotherhood v. Riggins, supra. When a verdict is so contrary to the overwhelming weight of the testimony as to be plainly wrong, a new trial should be granted. Mutual L. I. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649.

Benton, Bentley Moore, of Bessemer, for appellee.

It was permissible for plaintiff to testify that his wife was in good health at the time the policy was issued. Amer. Nat. Ins. Co. v. Rains, 215 Ala. 379, 110 So. 606; Wilkinson v. Moseley, 30 Ala. 562; Milton v. Rowland, 11 Ala. 732; Barker v. Coleman, 35 Ala. 221. The question as to whether the assured had tuberculosis at the time of issuance of the policy was properly left to the jury. Sou. L. H. Ins. Co. v. Morgan, 216 Ala. 529, 113 So. 540; Liverpool, etc., v. McCree, 213 Ala. 534, 105 So. 904; Amer. Ry. Exp. Co. v. Henderson, 214 Ala. 268, 107 So. 746.


There was no error in overruling objection to the question: "What was the condition of her (assured's) health when the policy was issued?" It was a question calling for the obvious facts from one who was intimately associated with assured, that it appeared or seemed to be good, apparent to the senses of an ordinary observer. Sovereign Camp Woodmen of the World v. Hoomes (Ala. Sup.) 122 So. 686; American National Insurance Co. v. Rains, 215 Ala. 378, 110 So. 606; National Order of Mosaic Templars of America v. Lile, 200 Ala. 508, 76 So. 450; Dominick v. Randolph, 124 Ala. 557, 27 So. 481; Fountain v. Brown, 38 Ala. 72; Barker v. Coleman, 35 Ala. 221; Wilkinson v. Moseley, 30 Ala. 562; Bennett v. Fail, 26 Ala. 605; Milton v. Rowland, 11 Ala. 732. See, also, Woodward Iron Co. v. Spencer, 194 Ala. 285, 69 So. 902.

Post, p. 560.

The case was for the jury who had inferences from the evidence that the physician diagnosed the fatal ailment of assured about the early part of September, 1927, and not before. This was some time after delivery of the policy of date of August 8th, and the physician did not say she was so affected in August.

The case of Southern Life H. Ins. Co. v. Morgan, 216 Ala. 529, 113 So. 540, held for the jury, bears similarity to the instant case. The witness Stewart was positive that all of the sick benefit claims were filled out about the middle of September, and this material question of fact was properly submitted to the jury under the rule that obtains. Liverpool London Globe Ins. Co. v. McCree, 210 Ala. 559, 98 So. 880; McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; American Ry. Express Co. v. Henderson, 214 Ala. 268, 107 So. 746.

Thus the only controverted fact of whether or not assured had tuberculosis on August 8, 1926, the date of her insurance contract with appellant, was duly submitted; as clearly defined and submitted to the jury by the given instructions. The physician states that he came to the conclusion of her condition "at the time" that he gave the certificates for sick benefits. He does not locate the time; the plaintiff's evidence fixes that time in September and not August.

It is true that courts take judicial knowledge that one afflicted with tuberculosis is not in sound health and material to the risk, within the meaning of insurance contracts (Brotherhood, etc., v. Riggins, 214 Ala. 79, 107 So. 44; Southern L. H. Ins. Co. v. Morgan, 21 Ala. App. 5, 105 So. 161; Id., 216 Ala. 529, 113 So. 540); yet, the evidence of the physician was not such as to show, without conflict, that assured had tuberculosis on the date of the delivery of the policy or date of insurance. Southern L. H. Ins. Co. v. Morgan, supra.

Refused charges 3, 13, and 15 were respectively embraced in the given charges.

There was no error in overruling the motion for a new trial.

Affirmed.

ANDERSON, C. J., and SAYRE and FOSTER, JJ., concur.


Summaries of

National Life Accident Ins. Co. v. Stewart

Supreme Court of Alabama
May 30, 1929
122 So. 621 (Ala. 1929)
Case details for

National Life Accident Ins. Co. v. Stewart

Case Details

Full title:NATIONAL LIFE ACCIDENT INS. CO. v. STEWART

Court:Supreme Court of Alabama

Date published: May 30, 1929

Citations

122 So. 621 (Ala. 1929)
122 So. 621

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