Fidelity Mutual Life Ins. Co. v. Miazza

• Decision Date: 12 April 1909
• Docket Number: 13868
• Citation: 48 So. 1017,93 Miss. 422
• Court: Mississippi Supreme Court
• Parties: FIDELITY MUTUAL LIFE INSURANCE COMPANY v. EMMA S. MIAZZA. [*]

48 So. 1017

93 Miss. 422

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

No. 13868

Supreme Court of Mississippi

April 12, 1909

FROM the circuit court of, first district, Hinds county, HON WILEY H. POTTER, Judge.

Mrs Miazza, appellee, was plaintiff in the court below; the insurance company, was defendant there. From a judgment in plaintiff's favor for the full sum due on the policy of insurance sued upon, the same having been upon the life of her deceased husband, Peter Miazza, the defendant appealed (its second appeal), to the supreme court. The facts necessary to an understanding of the decision, are stated in the opinion of the court.

Affirmed.

Alexander & Alexander, for appellant.

After the cause was remanded, it was tried on the same evidence except that the case for the defendant was made much stronger by the introduction of the testimony of Dr. Hunter, Dr. King, the chief medical examiner of the company, and Ragland, and Anderson, the local representatives of appellant company. The testimony of Drs. Hunter and King is clear and explicit that the disease or ailment from which Miazza suffered was material to the risk, and that, had a full and complete disclosure been made in regard to it, the application would never have been approved or the policy issued.

The court below misconstrued the purport and effect of the following language in this court's former opinion:

"The question should have gone before a jury to determine whether or not there had been any misrepresentations by Miazza in his application for insurance of a matter material to the risk, and this testimony was relevant and competent on that point."

This court was not dealing with the case made by the completed testimony. It was not even dealing with the effect of the testimony contained in the depositions. Certainly the court did not mean by this phrase of the opinion to hold that on the testimony contained in the depositions unrebutted, it was still a question whether the disease or ailment was material to the risk, and whether the misrepresentation as to the consultation and attendance of physicians was material. With the depositions held competent and introduced, it was still held open to plaintiff to overcome, if possible, the effect of the testimony.

The court did however express its view as to the weight and sufficiency of the testimony contained in the depositions, for in a subsequent paragraph it stated:

"In this case it can hardly be doubted that if there had been a full disclosure on the part of Miazza as to the character of his illness in 1903, it might have reasonably influenced the company not to make the contract of insurance."

On the second trial it was shown that a full disclosure "might have reasonably influenced the company" and further that it certainly would have caused the rejection of the risk.

It is inconceivable how it could ever be said that any sickness is immaterial to the risk when it is sufficient to cause death and does cause death. The risk that is in contemplation of both parties when the application is given and accepted, is that they are dealing with the chances of longevity. How can there be any question about whether a disease might reasonably shorten life, when, in fact, it has already caused death? The only witness for the plaintiff, Spengler, testifies that Miazza had a previous attack of the same trouble in Memphis in 1903; that it was a similar attack to that from which he died. The authorities are uniform to the effect that where the cause of death is directly related to the fact or condition misrepresented or concealed, the policy must be declared void. 3 Cooley's Briefs on Insurance Sec. 2183, and cases cited.

Misrepresentations in regard to health, though not related to the cause of death, avoid a policy. Ib.

Such was the ruling of the court in Cooperative Association v. Leflore, 53 Miss. 1.

Equally difficult is it to conceive how it can be thought to be immaterial that there was a concealment in regard to the consultation and attendance of physicians. Miazza did not disclose the name of any one of the three physicians that attended him. Statements as to the consultation and attendance of physicians are warranties material to the risk, and if false avoid the policy. 3 Cooley's Briefs on Insurance, Sec. 2156 and cases cited.

Questions as to these matters subserve the two-fold purpose of showing the general condition of the applicant's health, and at the same time they furnish data by which his statements as to his health may be confirmed. Ib.

Even in Pennsylvania, whose broad and liberal statute appellee sought to invoke, the court holds that misstatements as to the consultation with or attendance of physicians are material to the risk. Lutz v. Metropolitan L. Ins. Co., 116 Pa. 527; Wall v. Royal Society, 179 Pa. 355; Mengel v. N.W. Mutual L. Ins. Co., 176 Pa. 280. Statements in an application that one physician was consulted, is not a warranty that there were others. Brady v. United L. Ins. Co., 60 F. 727 (9 C. C. A. 252); Weil v. New York Life, 47 La. Ann. 1405.

We are unable to understand why the court below refused the first instruction for the defendant, since it is in strict conformity to law. It simply directed the jury to find for the defendant if Miazza failed to make a true and full and complete disclosure of the Memphis physicians who attended him in his attack in 1903.

It was clearly error to give the first instruction for plaintiff, to put the burden of proof upon defendant to show that the statements in the application were made by Miazza, and that the statements were material to the risk. The burden was on the defendant to show that the statements were untrue; this burden was assumed. While ordinarily the burden is on the defendant to show a breach, the burden of showing that the disease was trivial, ought to be and is on the plaintiff. 3 Cooley's Briefs on Ins. Sec. 2168.

The second instruction for plaintiff announces a rule of law not found in any text-book or decision. It is not necessary for an insurance company which has shown misrepresentations in a material matter, to show that it was injured by it; it is sufficient to show that it would not have issued the policy but for the misrepresentation, or to show that the misrepresentation was as to a fact which might have reasonably influenced its action at the time. It is not true that it lies with an applicant who has made misrepresentations to say that they were substantially true and have not injured the company.

The third instruction is plainly erroneous because it gives-emphasis to the apparent recovery from the Memphis attack, whereas the very fact that Miazza died from the same complaint shows that it did substantially increase the risk of his early death. It should have been left to the jury to determine the fact of whether the Memphis sickness, if disclosed, would have caused the rejection of the risk.

No question of waiver is now involved. No question of acquiescence growing out of the alleged knowledge of Ragland or Dr. Hunter or Anderson, the agents of the company, is presented. The only questions are first, there were no misrepresentations, and second, that they were not material to the risk.

It is significant that counsel for plaintiff introduced no evidence to impeach or contradict the testimony of the Memphis physicians or the testimony of Drs. Hunter and King. If the ailment described by the Memphis physicians was in fact trivial, surely it was in the power of plaintiff to find some physician or even layman to so testify. It stands unimpeached and un-contradicted, and there ought to have been a peremptory instruction for the defendant.

Insurance companies still have some rights, and it is not true that when they are sued all presumptions are against them, and that the ordinary rules of pleading and practice are not applicable.

McWillie & Thompson, for appellee.

Bearing in mind that the defendant had the burden of proving to the satisfaction of the jury both the existence of the misrepresentations and their materiality to the risk, we beg a brief consideration of the evidence, first as to the existence of the misrepresentations, assuming for the sake of argument that the jury had before them the duly proved original application. What were the misrepresentations in the application ruled on by defendant? They are the following answers given to questions which were presumably propounded orally as they do not appear in the instrument:

4th. That I have never had or been afflicted with any sickness, disease, ailment, injury or complaint. (This in print). I had yellow fever in 1878. Oct. 1903, was overworked, was doing both day and night work, and had insomnia and nervousness for about two weeks--full recovery, no symptoms since (This in writing).

5th. The last physician I consulted or who prescribed for me was Dr. (This in print) J. B. Stanley of Memphis (This in writing), about (This in print), Oct. 1903 (This in writing), for the sickness here stated, insomnia and nervousness. See No. 4.

The defendant's contention is that Dr. J. B. Stanley was not the last physician who was consulted by or prescribed for the insured and that the representation of the insured as to the nature of his trouble in October, 1903 was false because it was temporarily manifested in mental derangement and he was confined for a short time in Dr. Perry's sanitarium, and these facts were not mentioned.

A reference to the testimony of Ragland, who claimed to have taken the application as state agent of defendant, shows that he did not pretend to have taken down what the insured said but only what he understood at the time to be its substance and did not show that the application mentioned by him was...