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Sovereign Camp, W. O. W. v. Deese

Supreme Court of Alabama
May 12, 1938
181 So. 274 (Ala. 1938)

Opinion

1 Div. 971.

May 12, 1938.

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Lyons Chamberlain, of Mobile, for appellant.

Plea 4 is a plea of misrepresentation, and was sufficient as against the demurrer. Sovereign Camp., W. O. W., v. Moore, 232 Ala. 463, 168 So. 577; Beason v. Sovereign Camp, W. O. W., 208 Ala. 276, 94 So. 123. The provision of the policy governs as to what proof of loss is necessary in order to recover on said policy. Sovereign Camp, W. O. W., v. Gay, 217 Ala. 543, 117 So. 78; Supreme Ladies, etc., v. Baker, 163 Ala. 518, 50 So. 958; Equitable Life Assur. Soc. v. Dorriety, 229 Ala. 352, 157 So. 59. A plea of the general issue casts upon plaintiff the burden of proving the allegations of the complaint. Sovereign Camp, W. O. W., v. Barton, 230 Ala. 293, 160 So. 684.

Smith Johnston, of Mobile, for appellee.

Plea 4 does not aver that the matter alleged to have been misrepresented was material. It was thus demurrable. Code 1923, §§ 8507, 83364; Empire Life Ins. Co. v. Gee, 171 Ala. 435, 55 So. 166; Reliance Life Ins. Co. v. Sneed, 217 Ala. 669, 117 So. 307; Penn Mutual L. I. Co. v. Cobbs, 23 Ala. App. 205, 123 So. 94; Brotherhood, etc. v. Riggins, 214 Ala. 79, 107 So. 44; Sovereign Camp, W. O. W., v. Hutchinson, 214 Ala. 540, 108 So. 520. But the defendant had the full benefit of all allegations made in the plea, and if there was error in sustaining the demurrer it was harmless. Western U. T. Co. v. Pauley, 157 Ala. 615, 47 So. 654; Forrester v. McFry, 229 Ala. 324, 157 So. 68; Brasher v. Bromberg, 232 Ala. 450, 168 So. 552; Staples v. City Bank T. Co., 194 Ala. 687, 70 So. 115; Navco Hardwood Co. v. Bass, 214 Ala. 553, 108 So. 452; Bolen Bros. v. Miller, 22 Ala. App. 476, 116 So. 508; Id. 218 Ala. 12, 117 So. 462. Defendant received notice of insured's death, made its own investigation, refused payment and declined to furnish blanks. No further notice on proof was required. Liverpool, etc., Ins. Co. v. McCree, 213 Ala. 534, 105 So. 901; Jordan's Mut. Aid Asso. v. Asberry, 26 Ala. App. 105, 154 So. 120; Watts v. Metropolitan Life Ins. Co., 211 Ala. 404, 100 So. 812; Box v. Metropolitan Life Ins. Co., 232 Ala. 321, 168 So. 217; Byrd v. Aetna Life Ins. Co., 25 Ala. App. 318, 146 So. 78; Security Ins. Co. v. Laird, 182 Ala. 121, 62 So. 182; Southern Ind. Co. v. Hoffman, 16 Ala. App. 274, 77 So. 424.


Action on beneficiary certificate of insurance in fraternal association.

Plea No. 4, to which demurrer was sustained, set out stipulations of the contract to the effect that the insured warranted all the representations in the application to be true, and that any untrue statements therein shall make the certificate void, and "further alleges that in said application the said Deese warranted that his weight in the last two years preceding the execution of said application had not increased or decreased and that the said warranty was untrue in this: that his weight had decreased within two years preceding the date of said application and that said fact was falsely misrepresented by the plaintiff with intent to deceive the defendant corporation and that the same was relied on and in fact did deceive defendant."

In form, this is a plea of breach of warranty; a warranty of the truth of representations, which, if untrue, shall void the policy ab initio, prevent liability from ever attaching. Sovereign Camp, W. O. W., v. Moore, 232 Ala. 463, 168 So. 577.

In the case just cited, we collated our cases, and sought to clarify, somewhat, pleas of fraud in the procurement of the policy and pleas of warranty in view of Code, §§ 8364, and 8365.

It must be kept in mind that the statute, as applicable to cases of this kind, deals with misrepresentations touching matters going to the acceptance of the insured as an insurance risk.

Hence, by proper averments, such misrepresentations may be set up by plea of breach of warranty, or a plea of fraudulent misrepresentations. Both forms of plea go to the question of the existence, vel non, of a valid contract of insurance.

The statute puts such misrepresentations in the same class, whether in the form of a warranty or not, and briefly declares they shall not defeat the policy "unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increase the risk of loss." This clause is but a concise definition of actionable fraud as recognized in our statutes and decisions cited in Sovereign Camp, W. O. W., v. Moore, supra. The statute strikes out all warranties touching representations not fraudulent under recognized rules of law.

Plea 4 is based on deceit, the alternative provision of the statute, avoiding policies for misrepresentations made "with the actual intent to deceive."

Such plea must aver such facts as disclose the misrepresentations relate to matters intrinsically material to the risk, matters which the insurer may in good faith rely upon, and does rely upon, as an inducement to the acceptance of the insured as an insurable risk. Although it cannot be averred and proven in the particular case that the matter misrepresented in fact did increase the risk of loss, this alternative deals with material misrepresentations in the sense that they are so related to the question of an insurable risk that the insured may, in good faith, rely upon them as a material inducement to the making of the contract. The intent to deceive, within the meaning of the law, is the intent to induce his acceptance as an insurance risk by false statements. No such intent can be inferred from statements wholly immaterial in the premises. Some statements may be so patently material that an averment to that effect is needless in pleading. Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286.

It cannot be said as matter of law or as a fact of common knowledge that the loss of weight without more, is material. The plea should have averred the extent of loss of weight, or other facts disclosing such loss of weight, that, if truly represented, would have materially influenced the insurer in passing upon insurability. Empire Life Insurance Co. v. Gee, 171 Ala. 435, 55 So. 166; Reliance Life Insurance Co. v. Sneed, 217 Ala. 669, 117 So. 307; Sovereign Camp, W. O. W., v. Hutchinson, 214 Ala. 540, 108 So. 520; Brotherhood of Ry. Clerks v. Riggins, 214 Ala. 79, 107 So. 44.

Evidence on this issue was freely admitted. It was admissible under other issues going to the state of health of the insured at the time the policy was issued. At defendant's request, the court gave written charge No. 1, which submitted the issue to the jury in quite favorable terms.

The ruling on demurrer to plea 4, if error, was therefore harmless. Forrester v. McFry, 229 Ala. 324, 157 So. 68; Brasher v. Bromberg, 232 Ala. 450, 168 So. 552.

The substantial issue of fact related to the condition of health of the insured at the time the policy was issued.

The evidence was clear that the insured died of pulmonary tuberculosis, some 8 1/2 months after the policy date. Whether the disease was contracted or developed before or after that date was, under the evidence, a question for the jury. No discussion of details need be given. There is no sufficient ground to overturn the verdict.

That notice of death was duly given by letter to the insurer, with request for blanks to make out formal proof, is undisputed. Return letters declining to forward forms upon the ground that the insurer denied all liability because of misrepresentations dispensed with need for further proof. This, for reasons so obvious as to call for no further treatment or authority.

We find no reversible error in other rulings presented. No special treatment is deemed necessary.

Affirmed.

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


Summaries of

Sovereign Camp, W. O. W. v. Deese

Supreme Court of Alabama
May 12, 1938
181 So. 274 (Ala. 1938)
Case details for

Sovereign Camp, W. O. W. v. Deese

Case Details

Full title:SOVEREIGN CAMP, W. O. W., v. DEESE

Court:Supreme Court of Alabama

Date published: May 12, 1938

Citations

181 So. 274 (Ala. 1938)
181 So. 274

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