Opinion
4 Div. 829.
January 22, 1920.
Appeal from Circuit Court, Pike County; A. B. Foster, Judge.
C. H. Roquemore, of Montgomery, for appellant.
A doctor's expert testimony as to disease is the best evidence that can be produced. 58 Ala. 290; 31 Iowa, 216, 7 Am.Rep. 122; Bliss on Life Insurance, § 302. The affirmative charge was due the defendant on the testimony, in support of several of his pleas. 75 So. 463.
W. L. R. S. Parks, of Troy, for appellees.
The testimony consisted of an opinion, and was not conclusive on the jury. 139 Ala. 44, 36 So. 1012; 11 R. C. L. 586.
It appears from the judgment, from which this appeal is prosecuted, that this action is by "Willie Bass, Leila Lee, Eddie Bass, and Harry Bass, by his next friend Willie Bass," as plaintiffs. Therefore the contention of appellant that Leila Lee and Eddie Bass, who are shown to be adults, are here suing by next friend is not sustained by the record, and the misnomer as to the minor Harvy Bass (Harry Bass) was not raised by appropriate plea on the trial, and was therefore waived. Lehman, Durr Co. v. Warner, 61 Ala. 455.
A proper predicate, authorizing the introduction in evidence of the ledger containing the account between the defendant and the insured, was laid by the testimony of the witness Brown, identifying the book in question as the ledger kept by the camp clerk, and showing that the entries were in the handwriting of King, who was the clerk at the time they were made, and King's death. Loveman, Joseph Loeb v. McQueen, 203 Ala. 280, 82 So. 530.
It appears from the bill of exceptions that the ledger was offered and admitted in evidence, but the contents of the ledger is not shown. It will therefore be assumed that the entries in the ledger at least tended to show that Willis Bass was a member of the order in good standing at the time of his death. 6 Encyc. Dig. (Michie) 552, § 19, and authorities there collated.
The evidence offered by the defendant in support of its several pleas, consisting of the testimony of Drs. Salter, McEachern, and Watson, together with the documentary evidence, including the written application of the insured and the certificate of health signed and verified by the witness Dr. Salter, who was at the time camp physician, has been read in consultation, and, after full consideration thereof, we deem it only necessary to say, disregarding the conflicts in the evidence, the question as to whether the insured was suffering from the ailments, the subject of the warranties asserted in the pleas, at the time the application for insurance was made and the certificate delivered, clearly rests in inference which it was the province of the jury to draw. The trial court, therefore, was in error in giving the affirmative charge at the instance of the defendant, and for this reason the motion for a new trial was properly granted.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.