The opinion
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SOMERVILLE, J.
The chief issue of fact ■OH' the trial of this case was whether the ■assured, under whose policy plaintiff claims as beneficiary, was in sound health at the time the policy was delivered to him — that being an express condition to the validity and operation of the policy.
On this issue the trial court did not err in allowing several lay witnesses to testify that at and about the time in question the assured
appeared
to be healthy, this, not being deemed the expression of an opinion, hut the statement of a fact open to ordinary observation, as held in numerous cases. National Order, etc., Templars v. Lile, 200 Ala. 508 , 76 So. 450 ; Dominick v. Randolph, 124 Ala. 552, 553, 557 , 27 So. 481 ; Fountain v. Brown, 38 Ala. 72 ; Barker v. Coleman, 35 Ala. 221 ; Wilkinson v. Mosley, 30 Ala. 562 ; Bennett v. Fail, 26 Ala. 605 ; Milton v. Rowland, 11 Ala. 732 . Several of these cases hold that a lay witness may testify that a person observed by him was sick or diseased; the symptoms being apparent to the senses of an ordinary observer.
A son of the assured, who showed no qualifications whatever, was allowed, over apt objections, to testify that the health of the assured at' the time of the delivery of the policy “was pretty good.” A majority of the court are of the opinion that this statement was in effect the same as a statement that the health of assured
seemed
or
appeared
to he good, and must have been so understood by the jury; and hence they hold that it was not error to admit it. From that conclusion Justice GARDNER and the writer dissent.
On the issues of fact presented by the special pleas, the evidence presented jury questions, and the general aflirmátive charges, as severally requested, were properly refused.
It results that the judgment must be affirmed.
ANDERSON, O. J., and SAYRE, THOMAS, MILLER, and BOULDIN, JJ„ concur.
SOMERVILLE and GARDNER, JJ., dissent.