Opinion
8 Div. 722.
November 5, 1925.
Appeal from Circuit Court, Madison County; James E. Horton, Judge.
R. C. Brickell and S. H. Richardson, both of Huntsville, for appellant.
No written or oral misrepresentation or warranty made in negotiating for a policy of insurance shall defeat the policy, unless made with actual intent to deceive, or unless the matter misrepresented increases the risk. Code 1923, § 8364; Empire L. I. Co. v. Gee, 171 Ala. 435, 55 So. 166; Mass. Mutual Co. v. Crenshaw, 186 Ala. 460, 65 So. 65; 3 Cooley's Briefs on Ins. 2163. It was error to give the affirmative charge for defendant.
Eyster Eyster, of Albany, and Douglass Taylor, of Huntsville, for appellee.
Defendant proved every averment of every plea without contradiction, and if any one plea was good as against demurrer, the action of the trial court should be upheld under Supreme Court rule 45. Am. Nat. Ins. Co. v. Rosenbrough, 207 Ala. 538, 93 So. 502.
Suit on a policy of insurance. Some of the rulings in favor of the special pleas were erroneous, but that in our opinion, is not now a matter of consequence. All that can be said against special plea numbered 3 is that it fails to allege explicitly that the complaint with which plaintiff (appellant) had suffered prior to his application for the policy in suit, in which he represented that his health was good, whereas he was suffering from cancer, was intrinsically material to the risk; but no doubt we know that a person afflicted with cancer does not enjoy good health, and that such disease tends materially to shorten life — that is, to increase the risk of loss. There is no probability that the amendments necessary to the sufficiency of some of the pleas would have made any difference in the evidence introduced on either hand. The evidence shown by the record is without dispute, and from that evidence but one rational conclusion can be drawn, viz.: That insured falsely answered material questions in order to have the insurance company issue the policy in suit. The questions so answered related to matters of insured's previous health and experience, and, necessarily, insured knew his answers were false, and, being false, but one intent can be attributed to insured in making them, viz. the intent to deceive. The evidence showed without conflict or adverse inference that plaintiff, at the time of his application for a policy, was suffering from cancer and within 12 months he had undergone a surgical operation for its removal — as some other of the pleas undertook to allege, his representations to the contrary notwithstanding — and that it was a contributing cause of his death a few months after the issuance of the policy. Men must be presumed to intend the natural consequences of their voluntary acts and declarations. In the case shown by the record, there is no satisfactory reason for a reversal. No court, on the evidence here shown, would permit a verdict for the plaintiff (appellant) to stand. It results that the court committed no reversible error in giving the general charge requested by the defendant. As we have said, the other rulings complained of are now of no consequence. The special replications stricken were nothing more in legal effect than a denial of material allegations of the special pleas, and so were covered by the general replication which was well pleaded.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.