Columbian Mut. Life Assur. Soc. v. Harrington

• Decision Date: 18 May 1925
• Docket Number: 24447
• Court: Mississippi Supreme Court
• Parties: COLUMBIAN MUT. LIFE ASSUR. SOC. v. HARRINGTON et al. [*]

104 So. 297

139 Miss. 826

COLUMBIAN MUT. LIFE ASSUR. SOC. v. HARRINGTON et al. ^[*]

No. 24447

Supreme Court of Mississippi

May 18, 1925

(In Banc.)

1 PLEADING. Recital in exhibit attached to declaration controls averment in declaration.

Recital in covenant of insurance issued by mutual benefit society attached to declaration in action thereon, that the society was organized under Laws 1916, chapter 206, held to control allegation in declaration that the society was a nonresident corporation.

2 INSURANCE. Burden of proving defendant a foreign corporation held on plaintiffs.

In action on covenant of insurance in which the general issue plea was interposed to declaration alleging that defendant was a foreign corporation, plaintiffs, to avoid breach of warranties and false representations, on the ground that by-laws, constitution, and application were not furnished to the insured with covenant of insurance as required where insured is foreign corporation under Code 1906, section 2675 (Hemingway's Code, section 5141), had burden of proving the defendant a nonresident corporation.

3 INSURANCE. President's uncontradicted testimony held to prove that society was domestic mutual benefit society, and not foreign corporation.

In action on covenant of insurance, in which plaintiffs sought to avoid breach of warranty and false misrepresentations on ground that assured was not bound by the by-laws, constitution and application because not furnished with copies thereof as required, where insurer is corporation by Code 1906, section 2675 (Hemingway's Code, section 5141), the uncontradicted testimony of defendant's president that it was mutual benefit society, organized under Laws 1916, chapter 206, and not a foreign corporation, held sufficient to prove such fact.

4. INSURANCE. Statute requiring "life insurance companies" to deliver application with policy held inapplicable to mutual benefit societies.

Code 1906, section 2675 (Hemingway's Code, section 5141), requiring "life insurance companies" to deliver to the insured with the policy a copy of the application, or be precluded from denying falsity of statements therein, held inapplicable to mutual benefit associations, in view of Hemingway's Code, section 5176.

5. INSURANCE. Only seven incorporators required for organization of mutual benefit society.

Under Hemingway's Code, section 5184, only seven incorporators are required for organization of mutual benefit society.

6. INSURANCE. Falsity of representations as to health held for jury.

Falsity of insured's representation that she was not afflicted with cancer or carcinoma of the breast at time of application for insurance and time of delivery of covenant held for jury, notwithstanding operation for cancer of breast less than twenty days after delivery of policy.

7. INSURANCE. Physician's testimony as nonexpert witness of case of carcinoma of breast personally observed by him held admissible.

In action involving issue as to whether insured's representations that she was not afflicted with cancer or carcinoma of the breast was false, in view of assured's operation less than twenty days after delivery of policy, testimony of physician as nonexpert witness as to development of a case of carcinoma of breast which he had personally observed within less than twenty days after injury of patient held admissible.

8. INSURANCE. Testimony by insured's husband as to bruise on breast held admissible in action involving falsity of representations that insured was not afflicted with cancer or carcinoma of breast.

In action involving issue as to whether insured's representation that she was not afflicted with cancer or carcinoma of the breast was false, in view of assured's operation less than twenty days after delivery of policy, testimony of insured's husband as to bruise on insured's breast held admissible.

9. EVIDENCE. Proofs of loss held admissible against beneficiaries to prove misrepresentation by insured as to age.

Proofs of loss voluntarily submitted to insurer by beneficiaries held admissible against beneficiaries as evidence that insured had misrepresented her age and had obtained insurance at age not insurable under by-laws and constitution made part of the contract of insurance under Hemingways' Code, section 5180.

10. AFFIDAVITS. Ex parte affidavits held not admissible to prove misrepresentation of insured's age.

Ex parte affidavits secured by insurer on its own initiative held not admissible to prove insured's misrepresentation of her age.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Simpson county, HON. W. L. CRANFORD, Judge.

Action by Maggie Harrington and others against the Columbian Mutual Life Assurance Society. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Reversed and remanded.

Wells, Stevens & Jones and J. H. Sumrall, for appellant.

In discussing the first assignment of error with reference to the exclusion of the trial court of affidavits furnished to the society by the beneficiaries in proof of death of the assured, and in support of their claim against the society, we desire to call the attention of the court to the provisions of the constitution and by-laws of the society which are made a part of the contract by the application and covenant, which provide that they shall become a part of the contract, and as required by sections 290 and 291 of said constitution and by-laws; and in accordance with the provisions of section 8, chapter 206, Laws 1916, under which said society is incorporated and operates. See sections 365 and 367 of said constitution and by-laws.

The record shows that the affidavits, including statements as to the date of birth of the deceased assured were not only furnished by the claimants who were named as beneficiaries in the covenant sued upon, but that at least two of said affidavits were executed by a brother and a sister of the deceased, both of whom in the very nature of things, were in position to know the age and date of birth of their sister; and since this evidence was material, in view of the fact that the society did not issue insurance covenants to any persons above the age of fifty-five years on the ordinary life plan, which carried a cheaper rate than other plans of insurance; and since the deceased member had succeeded in procuring this particular form of insurance by reason of a false warranty as to the date of her birth, which resulted in putting her in a class in which she did not rightfully belong, and enabled her to procure a covenant of insurance on a plan to which she was not entitled, then the importance of this evidence becomes obvious, and the court erred in refusing to permit this evidence to be introduced, and this error amounts to a substantial right being denied to the defendant in said cause, which would justify this court in reversing this cause on that error alone.

It might be argued that these affidavits were not admissible because of the fact that they were mere ex parte affidavits of persons other than those who received direct benefit from the proceeds of the covenant, but all questions that might be presented with reference to the admissibility of this evidence, under ordinary circumstances, and under different conditions, were foreclosed by the decisions of this court in Eminent Household of Columbian Woodmen v. Wicks, 116 Miss. 211, and Sovereign Camp, W. O. W. v. Garner, 125 Miss. 8, in which it is held that fraternal benefit societies are not governed by the general laws with reference to insurance; but that chapter 206, Laws 1916, constitutes the sole and only law applicable to the covenants and manner of doing business of such fraternal benefit societies as are authorized to operate thereunder.

This third assignment of error is directed to, and necessarily includes both of the former assignments of error, already discussed, in that the state of the record, and all the testimony introduced by the plaintiffs in rebuttal of the complete and valid defense to the action was improperly allowed to be submitted to the jury under the circumstances surrounding the case.

In Sovereign Camp, W. O. W., v. Sloan (1924), 101 So. 195, it was held that it was within the province of the court to take judicial notice of the fact that a certain condition of the human body is a disease and not a temporary ailment; and, therefore, it was not only within the province of the trial court but its absolute duty, in view of the undisputed testimony of experts as to the duration of the malady which caused the death of the assured in this case, for the trial court to have excluded the improper evidence introduced by the plaintiffs in this case, and recognize the fact that under the positive proof, and the character thereof, submitted by the defendant, there had been a false warranty by the assured in the application and medical examination.

It will probably be urged in this case, as it was urged in the trial in the lower court by appellees' counsel, that the testimony of Dr. Shands, the expert who testified in this case, and also the attending physician and surgeon who performed the operation upon the deceased for the malady which ultimately produced her death, will be inadmissible because privileged; but it is only necessary to direct attention to W. O. W. v. Farmer, 116 Miss. 626.

In discussing the fifth and last assignment of error, to the effect that the verdict and judgment in the lower court is contrary to the law and evidence, a resume of the entire evidence introduced in this case is necessary, but we shall only dwell upon the important features of the testimony indicating that an incorrect verdict and judgment has been rendered in this case. We are not unmindful of the...