National Life Ins. Co. of America v. Hedgecoth

BROWN, P. J. Tbe appellant does not seem to seriously treat the assignment of error predicated on the action of the court in overruling the demurrers to the complaint.- All that is said with reference thereto is “every material fact which constitutes the ground of plaintiff’s action must be alleged in bis declaration when tbe complaint does not follow the code form.” This statement does not undertake to point out wherein the complaint fails to meet these requirements, nor do we find any such defect. [1] The defendant’s pleas numbered 2, 3, 7, 8, and B were subject to the objection pointed out in the demurrer, either that they do not aver that the alleged misrepresentations were made with actual intent to deceive, or that the matter misrepresented increased the risk. Code 1907, § 4572; Afro-American Life Ins. Co. v. Adams, 195 Ala. 147, 70 South. 119; Metropolitan Life Ins. Co. v. Goodman, 196 Ala. 304, 71 South. 409. [2] Moreover, it appears from the record that the defendant had full benefit of the defense sought to be set up by tbe pleas eliminated by demurrer, under its plea A. Empire Life Ins. Co. v. Gee, 178 Ala. 492, 60 South. 90. The matters made the subject of pleas 4, 5, 6, and C were available to the defendant under the general issue. [3] Dr. Carter’s qualification to testify as an expert was admitted by tbe defendant, and it was shown that he had treated the plaintiff, and was familiar with the character of plaintiff’s ailment. On this showing it was permissible for the doctor to state his opinion as to the probable duration of the plaintiff’s disability, for tbe purpose of aiding the jury in determining this question of fact. Chamberlayne’s Modern Law of Evidence, §§ 2375; Jones on Evidence, §§ 368-371; L. & N. R. Co. v. Stewart, 128 Ala. 313, 29 South. 562; Southern Ry. Co. v. Hobbs, 151 Ala. 335, 43 South. 844; Lovelady v. B. R. L. & P. Co., 161 Ala. 494, 50 South. 96; Dixon v. State, 139 Ala. 104, 36 South. 784; L. & N. R. R. Co. v. Travis, 192 Ala. 453, 68 South. 342; Travis v. Louisville & N. R. Co., 183 Ala. 415, 62 South. 851. [4] One of the issues was as to whether certain statements imputed to the plaintiff in the application and made the basis of defendant’s plea A were false, and made by the plaintiff with intent to deceive, and it was permissible for tbe plaintiff to show by the witness Wier, who acted as defendant’s agent in taking the application, that Wier filled out the blank, and that the statements embodied therein were the statements of the witness, and not of the plaintiff. [5] There is some evidence tending to show that the defendant had made extensive investigation as to medical advice and treatment obtained by the plaintiff at different places and from different physicians, and while the statements of counsel in argument might be termed rather extravagant, they are not wholly unsupported by the evidence. ‘ [6] In view of the tender of the premiums, as embodied in defendant’s special plea A, we see no merit in the appellant’s exception to the oral charge of the court. [7, 8] Under the evidence, the case was for the jury, and the refusal of the affirmative charge to defendant, and the overruling of its motion for new trial, do not constitute reversible error. Southern Ry. Co. v. Kirsch, 150 Ala. 659, 43 South. 796. Affirmed.