Fidelity Mut. Life Ins. Co. v. Miazza

• Decision Date: 22 June 1908
• Docket Number: 12,910
• Citation: 93 Miss. 18,46 So. 817
• Court: Mississippi Supreme Court
• Parties: FIDELITY MUTUAL LIFE INSURANCE COMPANY v. EMMA S. MIAZZA. [*]

46 So. 817

93 Miss. 18

FIDELITY MUTUAL LIFE INSURANCE COMPANY v. EMMA S. MIAZZA. ^[*]

No. 12,910

Supreme Court of Mississippi

June 22, 1908

FROM the circuit court of, first district, Hinds county, HON ROBERT L. BULLARD, Judge.

Mrs Miazza, appellee, was plaintiff in the court below, the insurance company, appellant, was defendant there. From a judgment in plaintiff's favor, predicated of a peremptory instruction, the defendant appealed to the supreme court.

The facts are stated in the opinion of the court.

Judgment reversed and cause remanded.

F. H Calkins, Alexander & Alexander and George B. Power, for appellant.

Can it be said, as a matter of law, that the concealment by Miazza of the fact that he had suffered a severe attack of dementia and physical prostration, necessitating the attendance of two physicians and his confinement in a sanatorium for the insane, under the care of a third physician, are immaterial facts which the appellant company had no right to know, and which, if known, would have been wholly immaterial to the risk? Again, can it be said as a matter of law that the false statements in the application that the insured was last prescribed for by Dr. J. B, Stanley, and by him only for insomnia and nervousness and that he had been consulted or prescribed for by any other physicians during the last ten years are immaterial statements?

In determining these questions must the general law, as construed and announced by the supreme court of this state control? or is the contract a Pennsylvania contract, and, if so, can the statute of Pennsylvania have any application under the facts of this case?

It was not denied by counsel for the plaintiff in the lower court that the statements contained in the application are warranties, to the absolute truth of which the insured must be held. Counsel have not questioned the law as declared in this state, in Co-operative Association v. Leflore, 53 Miss. 1, and in Planters Insurance Company v Myers, 55 Miss. 479. These cases, which have never been modified or questioned, declare, as do the courts of practically all of the states, that a warranty in a contract of insurance extends to every matter Which it embraces, whether material to the risk or not, and the assured commits himself to the literal truth of the statements warranted. Nor was the rule announced in these cases questioned, that the language of the application itself, and the reference to it in the policy, made the statements contained in the application warranties. Being warranties, it is wholly immaterial whether they affect the risk or not; or whether the false warranties were made wilfully or innocently.

As these two cases leave no doubt as to what the law is in this state, the only way to escape their effect, open to the plaintiff, was and is, to contend that the contract is a Pennsylvania contract and within the protection of the statute of that state. The replication setting up this contention was filed after the depositions were taken, and seems to have been an afterthought, born of the necessity of the case.

To this contention we say that the contract is not a Pennsylvania contract, but if it is, the statute and decisions of that state will not aid the case for plaintiff. We must presume that this replication, setting up the Pennsylvania statute, was filed in ignorance of the recent statute of this state. Sec. 14 of Chapter 59, Act 1902 (Laws) 66, expressly provides that the situs of every contract of insurance upon, or concerning any property, or interest, or lives in his state, or with any resident thereof, shall be in this state and shall be deemed to be made therein. This act has been brought forward and is now part of the Code of 1906. In view of this plain provision, we fail to see how it can be argued that the Mississippi courts must ignore this statute and follow a Pennsylvania statute. It is true the application contained a formal provision that the policy and application shall be construed according to the laws of the state of Pennsylvania. This provision was doubtless inserted for the purpose of securing uniformity of construction, and nothing was wrong or reprehensible in thus endeavoring to make definite the rule of construction that is to apply to the contract. But, of course, the stipulation can have no application as against the statute to the contrary. Our statute is intended to cover just such a case as this, and, in turn, to secure uniformity of construction of all policies of every company covering risks in this state. It is thought better that all such policies, by whatever company issued, should in the courts of this state be construed according to the laws of this state than that the company be left free to contract as to what law should govern. Whatever may be the reason, ita lex est scripta. It was suggested rather than argued in the court below that the appellant company, having inserted this provision in the policy, was estopped to invoke the statute of this state as the situs of the contract. This argument has at least the charm of novelty. Of course, our statute cannot be set aside, either by the contract of the parties or by the conduct of the parties. Neither party could be permitted either by contract or estoppel to evade a law of this state. The stipulation in the application is as much that of the applicant as that of the company. If the statute of this state fixing the situs and providing what law should govern cannot be invoked by the company, then it could not be invoked by the insured, and it would result in every case that the act of 1909 could be made nugatory by a stipulation in the policy that the law of another state should govern, and this stipulation would be binding on both parties; and, since only the insurer and the insured and their privies ever assert rights or defenses under policies it would result that the statute could never have any force at all as against such a stipulation.

But out of deference to the learning and standing of counsel for appellee, we will examine somewhat into the statute and decisions of Pennsylvania and show that, if they are to govern, they will not avail to save the plaintiff's case. The Pennsylvania statute of June 23, 1885, is as follows:

"Whenever the application for a policy of life insurance contains a clause of warranty of the truth of answers therein contained, no misrepresentation or untrue statement in such application made in good faith by the applicant shall affect the forfeiture, or be the ground of defense of any suit brought upon the policy of insurance issued upon the faith of such application, unless such misrepresentation or untrue statement relate to some matter material to the risk."

The only effect of this statute is to change the general rule that waranties must be given full effect, whether the matters warranted are material or not to the risk, provided applicant made the false statement in good faith. March v. Metropolitan Life Ins. Co., 186 Pa. 629; U. B. Mutual Aid Society v. O'Hara, 120 Pa. 256; Mengal v. Insurance Co., 176 Pa. 280; Murphy v. Prudential Life Ins. Co., 205 Pa. 244.

In Rinker v. Aetna Life Ins. Co., 214 Pa. 608, notwithstanding the Act of 1885, the court held that a false answer in the application as to whether the insured had ever undergone any surgical operation was, as a matter of law material to the risk. There was no direct ruling to this effect, but it was assumed on both sides and by the court that such concealment, if, in fact made, was material The controversy was, whether in fact, the applicant had made the disclosure or not.

It will be seen from the foregoing authorities that before plaintiff can escape the effect of the decisions of this state and from the general rule of law as announced everywhere it is necessary, first, that our act of 1902 as to the situs of the contract be ignored and the contract held to be controlled by the Pennsylvania statute. In the next place, it would be necessary for plaintiff to show that the misstatements were innocently made; and finally, it should be necessary to show, not as a matter of law, but as a matter of fact, that the attack of sickness and consequent dementia in Memphis were not material to the risk. Plaintiff's case fails in each of these propositions. We have already shown that the contract must be construed according to the laws of the state. On the question whether the misstatements were made in good faith there was a clear issue of fact made by the rejoinder in short to the replications. As the misstatements or false warranties were clearly set up by plea, and the replications set up the good faith of the applicant, the burden was on the plaintiff to show good faith, even if the Pennsylvania statute should govern. There was no evidence on this controverted point, but the court, as a matter of law and in the absence of any evidence, held that defendant could not prove anything about the illness or attack set up in the plea. This was so obviously erroneous that it does not call for discussion.

Insanity has been frequently and almost universally held to. be a disease. It is so held not only by the courts but by writers on medical jurisprudence. See Taylor's Medical Jurisprudence, Ed. 1873, 853; 1 Wharton & S. Medical Jurisprudence, Sec. 257.

"Insanity is a disease of the mind which assumes as many and various forms as there are shades of difference in the human character. Conn., Mutual Life Ins. Co. v. Lathrop, 111 U.S. 612. To the same effect see Bradley v State, 31 Ind. 492; Mutual Life Insurance Co. v. Perry, 82 U.S. 589; 54 Me. 227; 6 Bush., 270; Ray Medical Jurisprudence, Sec. 54; Hammond's Treatise on Insanity, 265; Blackstone v. Standard Life & Accident Co., 74 Mich. 592; Halle v. Texas, etc., Ry. Co., 23 L....