Life & Casualty Ins. Co. v. Parker

• Citation: 161 So. 465,173 Miss. 180
• Decision Date: 20 May 1935
• Docket Number: 31745
• Parties: LIFE & CASUALTY INS. CO. v. PARKER
• Court: United States State Supreme Court of Mississippi

161 So. 465

173 Miss. 180

LIFE & CASUALTY INS. CO. v. PARKER

No. 31745

Supreme Court of Mississippi

May 20, 1935

Division B

INSURANCE.

In action on life policy containing provision that, if age of assured were misstated, amount payable should be such as premium would have purchased at correct insurable age verdict in accordance with plaintiff's contention that assured was twenty-six as stated in policy, at time of its issuance, held contrary to weight of evidence.

HON, R L. CORBAN, Judge.

APPEAL from the circuit court of Adams county, HON. R. L. CORBAN Judge.

Action by Katie R. Parker against the Life & Casualty Insurance Company. From the judgment, defendant appeals. Reversed and remanded.

Reversed and remanded.

L. C. Gwin, of Natchez, for appellant.

Even if the court should hold that the testimony of the appellee and her witness Patterson was competent to establish the age of the assured and was sufficient to render the issue a jury question, then under the rule announced in Mobile & Ohio R. R. v. Johnson, 141 So. 581, 165 Miss. 397; Newton v. Homochitto Lbr. Co., 138 So. 564, 162 Miss. 20; Columbus & G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817, it was the duty of the court to set aside the verdict as against the overwhelming weight of the evidence and grant appellant a new trial.

Upon the issue of the age of the assured the testimony of the appellee and her witness at best was only a conclusion drawn from the general appearance of the assured over a period of the acquaintanceship of each which was testified to be ten years, while the appellant's testimony was direct and positive given by one witness, the mother of the assured, who is in the best position of any one to give the age of her son, and by another witness, the brother of the assured, who was, save for the mother, the best witness obtainable as to the age of the assured.

Upon the issue of the illness of the assured at the time of the issuance of the policy with pulmonary tuberculosis, the appellee has established the fact that the direct and proximate cause of the death of the assured was pulmonary tuberculosis by her introduction of the proofs of death.

The attending physician stated in the proof of death introduced by the appellee that the disease causing the death of assured was pulmonary tuberculosis; that the duration of illness, from personal knowledge, was at least six months.

By this evidence the appellee is bound for the reason that it was introduced by her and she, therefore, vouched for its veracity.

Crowder v. Nelson, 32 Miss. 260; Tarver v. Lindsey, 137 So. 93, 161 Miss. 379; Crichton v. Halliburton & Moore, 122 So. 200, 154 Miss. 265; Stevens v. Stanley, 122 So. 755, 153 Miss. 802, 154 Miss. 627, 121 So. 814, 153 Miss. 801.

Whittington & Brown, of Natchez, for appellee.

The instruction complained of clearly presented to the jury, in proper and fair language, the law applicable to the issue, or issues involved. These issues, counsel admits, were the question of age and the question of health.

With respect to the proof of age by the appellee, counsel says that at best this proof was just conclusions, drawn from the general appearance of the insured over...