Louisiana State Life Ins. Co. v. Phillips , 223 Ala. 5 ( 1931 )

The bill as amended seeks in the alternative to meet section 8364 of the Code of 1923 by charging that the false misrepresentations were made with the actual intent to deceive or that the matter misrepresented increased the risk of loss. It is not questioned that the policy contains a provision of invalidity in case of said misrepresentations, and the appellant contends that the misrepresentations appear in the application and which was attached to or made a part of the policy contract as required by section 8371 of the Code of 1923. It appears that the application was in three parts, the first two parts being interrogatories to the applicant to be answered and signed by him, while the third part was a mere certificate to be filled out and signed by the examining physician and with which the applicant had nothing to do and with which he was not concerned, and which said third part could not form the basis of invalidity as it was not made a part of the policy contract as were parts one and two which were made so by photographic copies.

It seems that the complainant relies upon a misrepresentation in answering questions 17, 20, and 21 to part second of the application. It is sufficient to say that question 20 relates to matter contained in part 3 which has not been set out and made a part of the policy contract as required by section 8371 of the Code. Therefore the complainant must rest its right to relief upon false answers as to questions 17 and 21 and which are conceded to be inaccurate.

We think the evidence relieves the respondent of having made the misrepresentations with the actual intent to deceive as the uncontradicted testimony of Dr. Terry, the examining physician, shows that he himself filled out the answers without asking respondent the questions and that, while respondent signed the application, he did not read the same or have it read. Indeed, counsel for appellant does not seriously rely upon this theory of the case. It would seem, however, that notwithstanding this, he signed the application and received and kept the policy containing these questions and answers and that would amount to a warranty on his part of the truth of same.

It has been held by this court that every false warranty will not vitiate a policy contract; it must be as to some fact that would materially increase the risk. Mutual Life Ins. Co. v. Allen, 174 Ala. 511, 56 So. 568; Metropolitan Life Ins. Co. v. Goodman, 196 Ala. 306, 71 So. 409; Mutual Life Ins. Co. v. Mandelbaum, 207 Ala. 234, 92 So. 440, 29 A.L.R. 649; Empire Life Ins. Co. v. Gee, 171 Ala. 441, 55 So. 166; Accident Insurance Department, etc., v. Brooks, 216 Ala. 607, 114 So. 6; National Life Accident Ins. Co. v. Albert, 219 Ala. 190,121 So. 708.

The complainant contends that the answers to questions 17 and 21 were false and that a true answer would have disclosed facts or matter that would have materially increased the risk; that, as a matter of fact, he had within two years previous been in a hospital and was suffering from and treated for syphilis, a disease that materially increased the risk. It may be conceded that he had syphilis when he went to the Birmingham General Hospital in 1926, though Dr. Payne said he was treated for chancroid, a different disease from syphilis, and which was local and not at all dangerous. The witness, however, would not swear that he did not have and was not treated by Dr. Gewin for syphilis. There is also much evidence, though hearsay and secondary in character, which strongly indicates that he had syphilis at that time, notwithstanding Dr. Payne may have thought he had a chancroid and treated him for that trouble. While this evidence was not primary or the best, it was let in without objection and, being competent, must be considered by this court and does not fall within the rule of exclusion by section 6565, new to the Code of 1923. Hill v. Hill, 216 Ala. 435,113 So. 306.

Conceding that the respondent had syphilis when treated at the hospital in 1926, has the complainant shown that it was a disease of such character and had so far progressed as to materially increase the risk? This court does not judicially know that syphilis increases the risk of loss. Metropolitan Life Ins. Co. v. Goodman, 10 Ala. App. 461, 65 So. 449. We must therefore abide by the views and testimony of the medical men, and it seems, from the weight of the evidence, that syphilis is not an incurable disease and does not necessarily shorten life if taken in hand in time. True, Dr. Ward stated on direct examination that syphilis would increase the hazard of death or physical infirmity, but, upon cross-examination, admitted that it was a curable disease and that a large percentage were cured. He also stated that while some of the medical authorities held to the view that the disease could not be eradicated from the system, they were very far in the minority. Now there is no question that this young man had syphilis a few months after the policy was issued and when taken to a hospital the second time and still had it when the evidence was given, and the complainant's theory is that it was but an outcrop of the first attack and not a new case and, in fact, the disease was deep-seated and stubborn and had not been cured when the application for insurance was made. This theory may seem logical to the lay or legal mind, but we must be guided by the evidence in the case and which tends to show that the first attack was cured and that the second was a new one and contracted after the issuance of the policy. He was pronounced cured and sound when discharged from the hospital in 1926 and had every appearance of excellent health until a few months after the issuance of the policy, was examined by Dr. Terry when the insurance was taken out, and was found physically sound. Dr. Terry also testified that when he examined the respondent a few months after the issuance of the policy he found he had syphilis, but which indicated a fresh or new case of recent contraction. Dr. Terry was not only not contradicted, but is, in a sense, sustained by Dr. Ward who stated that one of the reasons for not puncturing the spine, when the young man was brought to the hospital in 1928, was that it was "too recent."

The decree of the circuit court is affirmed.

Affirmed.

SAYRE, THOMAS, and BROWN, JJ., concur.