Franklin Life Ins. Co. v. Jones

• Decision Date: 22 January 1934
• Docket Number: 30950
• Citation: 152 So. 285,169 Miss. 91
• Court: Mississippi Supreme Court
• Parties: FRANKLIN LIFE INS. CO. v. JONES

152 So. 285

169 Miss. 91

FRANKLIN LIFE INS. CO. v. JONES

No. 30950

Supreme Court of Mississippi

January 22, 1934

Division B

Suggstion Of Error Overruled March 5, 1934.

APPEAL from circuit court of Winston county, HON. JNO. F. ALLEN Judge.

Suit by Early Wade Jones against the Franklin Life Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Affirmed.

E. M. Livingston, of Louisville, for appellant.

Mailing of a proof, if mailed, was not a receipt thereof by the appellant contemplated in the terms of the policy.

Peoria Life Ins. Co. v. Bergeholm et al., 50 F. 67; Missouri Berry v. Lamar Life Ins. Co., 142 So. 445.

An insurance policy, the execution of which has been obtained by fraudulent representation, is absolutely void.

American Central Ins. Co. v. Autrem, 38 So. 626; Hoke v. National Life & Acc. Ins. Co., 60 So. 218.

If Jones is disabled now within the meaning of the disability clause in this contract of insurance, from his own testimony, he was certainly disabled at the time the policy was restored, if not at the time the original application was made. This being true the policy was never restored, under the provisions of the plain simple language in the application for restoration.

Rodgers & Prisock, of Louisville, for appellee.

There was no plea filed in the lower court whereby the defendant there sought to take advantage of a breach of warranty, and pleading must be construed most strongly against the pleader.

Bradley v. City of Jackson, 119 So. 811; Hart v. North American Ace. Ins. Co., 122 So. 471, 154 Miss. 400; Gulfport Building & Loan Assn. v. Miller, 128 So. 585; Cooperative Oil Co. v. Greenwood Agency Co., 114 So. 397.

The appellee having not presented that question to the lower court cannot raise it in the Supreme Court.

Mitchell v. Finley, 137 So. 330, 161 Miss. 527; Huston v. King, 80 So. 779, 119 Miss. 347; N. O. & N.E. Ry. Co. v. State Highway Commission, 144 So. 558; George County Bridge Co. v. Catlett, 135 So. 217, 161 Miss. 120; Pearl Realty Co. v. Wells, 145 So. 102; Louisiana Oil Corporation v. Bryan, 147 So. 324; Williams v. Butts, 87 So. 145, 124 Miss. 661; Burrough Land Co. v. Murphy, 95 So. 515, 131 Miss. 526.

It is not competent or permissible for counsel to make a different record from that made in the court below.

119 So. 199, 152 Miss. 814; Miss. Valley Trust Co. v. Brewer, 128 So. 83, 157 Miss. 890; Whittington v. T. H. Cottam Co., 130 So. 745; Noxubee County v. Long, 106 So. 83.

Before the court will reverse for error it must appear error was prejudicial to complaining party.

Miss. Utilities Co. v. Smith, 145 So. 896.

W. A. Strong, Jr., of Louisville, for appellee.

With reference as to whether or not the appellee became totally and permanently disabled at a time when said policy was in full force and effect, and has been since that time totally and permanently disabled, we feel justified in saying that the facts as shown by this record are amply sufficient to justify the court in submitting this question to the jury and to warrant the jury in finding as they did.

Equitable Life Assurance Society v. Serio, 124 So. 485; Metropolitan Life Ins. Co. v. Lambert, 128, So. 750.

Where the company, on receiving immediate informal notice of loss, sends an agent to investigate, it thereby waives the formal notice required by the policy.

State Mutual Ins. Co. v. Green, 62 Okla. 214, 166 P. 105, L. R. A. 1917F 663; 14 R. C. L., sec. 507; 35 L. R. A. (N. S.) 159; 33 C. J. 18.

No plea of breach of warranty was filed.

33 C. J. 100.

Even if he had filed a plea of breach of warranty, the evidence would be wholly insufficient to sustain the same.

Where part of amended application was not attached to life policy insurer could not prove statements therein as to consulting physician's was false.

New York Life Ins. Co. v. Rosso, 122 So. 382.

This policy is incontestable after one year from date of issue except for failure to pay premium when due.

Great Western Life Ins. Co. v. Snavely, 206 F. 20, 46 L. R. A. (N. S.), 1056; Mutual Life Ins. Co. v. Lovejoy, 83 So. 591.

OPINION

Ethridge, P. J.

On September 4, 1919, Early Wade Jones, appellee, took out a policy of life insurance with the Franklin Life Insurance Company, appellant, which policy, after one year, was incontestable except for nonpayment of premiums. In 1922 this policy lapsed for nonpayment of premiums, but was reinstated shortly after it lapsed, and shortly thereafter a loan was procured on the policy by the appellee in the sum of fifty-seven dollars. The application for the reinstatement shows that Jones was in good health at that time.

According to the evidence for the appellee, the premiums were paid and the policy was kept in force until February, 1925, when notice was given the insurance company that Early Wade Jones had become totally and permanently disabled, being afflicted with tuberculosis, and an adjuster was sent who took Jones' statement, in writing, on blanks furnished by the insurance company disclosing these facts. Appellee's evidence also showed that the notice was originally given to the state manager of the company at Clarksdale, said notice being duly mailed postage prepaid; that said state manager received the notice, and an adjuster was sent. It was also shown that the state manager send the letter notifying the company of Jones' inability to the home office; that the home office thereupon sent blanks to the state manager, who, in turn, mailed them to Jones to be filled out by him and his physicians and returned to the company.

The appellant, Franklin Life Insurance Company contends that this proof was never filled out and filed as required by the terms of the policy; while the testimony of the appellee and his physicians is to the effect...