American Cent. Ins. Co. v. Antram
| Decision Date | 04 June 1906 |
| Court | Mississippi Supreme Court |
| Parties | AMERICAN CENTRAL INSURANCE COMPANY v. LEVIN ANTRIM ET AL |
FROM the circuit court of Yazoo county, HON. DAVID M. MILLER Judge.
Antram and others, the appellees, were the plaintiffs in the court below; the insurance company, the appellant, was defendant there. From a judgment in plaintiffs' favor the defendant appealed to the supreme court.
The case was once before in the supreme court, on the first appeal, and is reported, American, etc., Insurance Co. v Antram, 86 Miss. 224 (s.c., 38 So. 626). On this, the second appeal, the errors assigned are the giving of instruction No. 4 for the plaintiff, which is set out in the opinion of the court, and the modification of instruction No 1 in behalf of defendant, which is as follows, the modification being indicated by italics:
"(1) If the jury believe from the evidence in this case that at the time the plaintiff, L. Antram, applied to Eggleston, the agent of the defendant company, for insurance, and obtained the policy for $ 1,200, he represented to the said agent that he (Antram) was constructing a school building which, when complete, would be worth about $ 3,000, and did not mention that he was engaged in repairing and making additions to an old schoolhouse that were to cost only $ 1,245, or about that amount, under his contract, but purposely withheld this information in order to mislead defendant, and that he afterwards obtained the policy for $ 1,800 which is in suit upon said representations, and failed and neglected to inform said agent of the true extent he was interested in said building under said contract, and that the said agent relied upon said representations by said Antram and issued said policy for $ 1,800, based upon and relying upon said representations made by Antram when he applied for insurance they must find for the defendant."
The following instruction was also given for the defendant:
"(2) If the jury believe from the evidence in this case that, at the time he applied for insurance upon the schoolhouse plaintiff was under contract to repair and make additions to the schoolhouse and that he, by representations and conduct misled the agent of the defendant, and obtained the policy for $ 1,800 from defendant by untrue statements and concealments as to his real interest in the property, and that defendant's agent issued said policy, relying upon representations of plaintiff which were untrue, they must find for the defendant. "
Judgment affirmed.
Williamson, Wells & Peyton, for appellant.
The opinion rendered by Judge TRULY in this case, when here upon the former appeal, announced the law to be, that if the policy was procured by fraudulent representations, the contract of assurance therein is not merely voidable, but is legally nonexistent. We think the proof in this case shown by Mr. Antram's own testimony on the subject, that it was clearly an intentional fraud on his part not to tell the facts, but to leave the agent to find out for himself, and the law is that 2 Am. & Eng. Ency. Law (2d ed.), 933; Hollman v. Life Ins. Co., 1 Woods (U.S.), 674; Columbia Ins. Co. v. Lawrence, 10 Pet. (U.S.), 516; Adams v. Lafayette Ins. Co., 36 La. Ann., 661; Daniels v. Hudson River Ins. Co., 59 Am. Dec., 192; Aetna Ins. Co. v. Simmons, 49 Neb. 811; Davis v. Aetna Ins. Co., 67 N.H. 335; Garrison v. Farmers Ins. Co., 56 N.J.L. 235; Chrisman v. State Ins. Co., 16 Ore., 283; Freedman v. Fire Association, 168 Pa. St. Rep., 249; Pelzer Mfg. Co. v. Sun Fire Office, 36 S.C. 213.
"And it has been held that a misrepresentation by the insured of a fact specifically inquired into by the insurer, although not material, will have the same effect in exonerating the latter from the contract as if the fact had been material, since by making such inquiry he implies that he considers it so." Miller v. Mutual Ins. Co., 7 Am. Rep., 122.
"Intent of Insured.--Concealment, which is only the effect of accident, negligence, inadvertence or mistake, will, if material, be equally fatal to a contract of insurance as if it were intentional and fraudulent." 28 Cent. Dig., 1150; Miller v. Western Ins. Co., 1 Handy, 208; Union Ins. Co. v. Stoney, Harp., 235.
"An applicant for insurance is bound to disclose fairly and with entire frankness all facts known to him which are material to the risk; and the neglect to do so, even though by inadvertence and without actual fraud, will not vitiate the policy. 28 Cent. Dig., 1150; Beebe v. Hartford Ins. Co., 25 Conn. 51.
Harris & Powell, for appellee.
The law is settled that a misrepresentation, to have the effect of avoiding a policy, must be a material one--that is to say, a misrepresentation of a fact which is made material by the parties or is material in fact. The rule is laid down thus: "It is held that a material misrepresentation defeats a contract of insurance without any express provision to that effect in the policy; but in order to have this effect it must be materially untrue or untrue in some particular material to the risk. It has been held that if a representation relating to a material matter is substantially true--that is to say, if it is so far true that the conduct of the insurer would not have been different if it had known the exact truth--this will not vitiate the policy.
Now Eggleston, the insurance agent, himself states that he would have issued the policy if everything had been disclosed to him.
There is a very broad distinction in the books as between misrepresentation and concealment. A misrepresentation of a material fact avoids the policy whether fraudulently made or not, but concealment to avoid a policy must be purposely or fraudulently made. The rule is thus laid down in 2 Am. & Eng. Ency. Law (1st ed.), 302:
E. R. Holmes, on same side.
A concealment exists where the assured has knowledge of a fact material to the risk, and honesty, good faith and fair dealing requires that he should communicate it to the...
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