Summary
In Cotton States L. Ins. Co. v. Crozier, 216 Ala. 537, 113 So. 615; National L. A. Ins. Co. v. Puckett, 217 Ala. 110, 115 So. 12, the statements of the attending physicians were upon their own knowledge and did not contain hearsay recitals.
Summary of this case from Laury v. Northwestern Mutual Life Ins. Co.Opinion
7 Div. 730.
June 30, 1927.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Victor Vance, of Gadsden, for appellant.
It was error to sustain demurrer to plea 2. Metropolitan L. I. Co. v. Goodman, 10 Ala. App. 446, 65 So. 449; Manhattan L. I. Co. v. Verneuille, 156 Ala. 592, 47 So. 72; Code 1923, § 8371. Plaintiff's replications were subject to demurrer. 12 Cyc. 12. Evidence of friends that insured was apparently in good health is not sufficient to overcome positive statements of a physician. Kipp v. Metropolitan L. I. Co., 41 App. Div. 298, 58 N.Y. S. 494; 25 Cyc. 945.
O. B. Roper, of Gadsden, for appellee.
Under the evidence it is clear that the insured thought her health was good when the policy was delivered. 37 C. J. 402; Mass. Mutual L. I. Co. v. Crenshaw, 186 Ala. 460, 65 So. 65. The evidence fails to show any intent to deceive. Code 1923, § 8364; Empire L. I. Co. v. Gee, 171 Ala. 435, 55 So. 166; Mass. Mutual L. I. Co. v. Crenshaw, 195 Ala. 263, 70 So. 768. The second certificate of death was admissible. 37 C. J. 560.
The provision of the policy set up in plea 2, notwithstanding it is in the form of a condition precedent to the operation of the contract of insurance, has been held by this court to be in legal effect a warranty, and governed by the principles of law applicable to warranties. Mutual Life Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649.
This plea was therefore defective in not averring that "the serious disease of the heart" imputed to the assured increased the risk of loss. Mandelbaum's Case, supra; Sov. Camp, etc., v. Hutchinson, 214 Ala. 540, 108 So. 520.
The demurrer, however, did not point out this defect, and the grounds of demurrer actually assigned were invalid; the plea not being otherwise defective. Sov. Camp, etc., v. Hutchinson, supra.
The demurrer to plea 2 was therefore improperly sustained; and, as the defendant did not have the benefit of its defense under any other plea, nor under the instructions of the trial judge to the jury on the evidence, the error was prejudicial.
The physician's death certificate, filed with defendant as part of the proofs of death, was not evidence for plaintiff, against defendant, of the truth of any of its statements of fact, but only of plaintiff's compliance with the requirements of the policy in that behalf. 37 Corp. Jur. 560, § 316; Id. 632, 633, §§ 434, 435. The statements in the certificate, however, including the statement that the assured died of heart disease, which had existed for "two or three years," and for which the physician had treated her during that time, were evidence against plaintiff by way of admissions. 37 Corp. Jur. 632, § 435. And such statements, if unrebutted or unexplained, or unqualified, by other evidence tending to show that they are erroneous or untrue, are held as binding and conclusive on the beneficiary. 37 Corp. Jur. 561, § 316.
But evidence in contradiction or impeachment must be legal and not hearsay evidence; and hence the second certificate, signed by the physician, substituting a contradictory statement as to the duration of the lethal disease for the statement made in the original certificate, was not admissible in evidence at the instance of plaintiff, unless it was shown to have been delivered to and accepted by defendant in lieu of, or as supplementary to, the original certificate. No such proof being offered, and objection, with exception, having been made on that ground, the admission of the second certificate, dated March 11, 1926, was erroneous and prejudicial.
Plaintiff's special replications to pleas 4, 5, and 6, charging deceit in her representations made in her written application for this policy, were in effect denials of the truth of the pleas, amounting to the general issue; and, though they contained some allegations of fact, they were not subject to demurrer.
For the errors noted, the judgment will be reversed and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.