Hoke v. National Life & Acc. Ins. Co.

• Decision Date: 02 December 1912
• Docket Number: 15,508
• Citation: 60 So. 218,103 Miss. 269
• Parties: WILLIAM HOKE v. NATIONAL LIFE & ACCIDENT INSURANCE CO
• Court: Mississippi Supreme Court

60 So. 218

103 Miss. 269

WILLIAM HOKE v. NATIONAL LIFE & ACCIDENT INSURANCE CO

No. 15,508

Supreme Court of Mississippi

December 2, 1912

APPEAL from the circuit court of Lauderdale county, HON. JNO. L BUCKLEY, Judge.

Suit by William Hoke against the National Life & Accident Insurance Company. From a judgment for defendant, plaintiff appeals.

The appellant applied for and obtained a policy in the National Life & Accident Insurance Company. Among other stipulations in the policy, it was agreed that the assured warranted all statements, which he made in his application and in the acceptance of the policy, to be true, and that, if any of said statements were untrue or evasive of the truth, the policy should be void. Among the statements made in response to questions in the application, the assured stated that he had not had medical or surgical treatment within five years last past, and that he had not had certain diseases, among others, hernia, and that he had not been disabled by accidents, and had not received anything as indemnity for accidents during the past five years.

A few days after the issuance of the policy, appellant was injured by the street railway company, and, indemnity being refused by appellee, suit was brought. The defendant filed a general plea and four special pleas, setting up, among other things that the warranties in the application were false, as appellee had been injured on numerous other occasions prior to the issuance of this policy and within the time stipulated within his warranty, and that he had received medical and surgical treatment several times within the time prescribed and that he had been treated for hernia during that time, and that he had received money as indemnity for accidents during that time on four different occasions from four different accident companies. The plaintiff filed a replication to said pleas, the gist of which was that he did not sign the application and had no knowledge of its provisions, and that he had answered truthfully all questions asked him by the agent of the appellee. The case was submitted to a jury under instructions which informed them that if they believed the plaintiff signed the application for insurance at the time it was made, then they must find for the defendant. The jury returned a verdict for defendant, and from a judgment in accordance therewith this appeal was prosecuted.

Affirmed.

Fewell & Cameron, for appellant.

It is the law in Mississippi, and has been for many years, that an insurance policy is to be construed most strongly against the company, and if possible the court should allow recovery instead of forfeiture, as is held in the Mutual Reserve Fund Life Association v. Ogletree, 77 Miss. 7, in which Judge WOODS speaking for the supreme court quotes the language of the court in Planter's Insurance Co. v Myers, 55 Miss. 479, as follows: "We adopt the doctrine of those cases which hold that, if the agent takes charge of the preparation of the application, or suggests or advises what shall be answered, or what will be a sufficient answer, the company shall not avoid the policy because they are false or untrue, if full disclosures were made by the applicant to him." A casual view of the original application in this case will show the handwriting different entirely from the handwriting of the signature alleged to have been that of Bill Hoke's and in truth and in fact the agent of this company never asked Hoke any of the questions which are now set up as breaches of warranty, etc. He did get his name and age, and then with practically one stroke of the pencil wrote across the warrants in big letters the word "none." It is wholly unreasonable to say that the agent read to the plaintiff the many questions printed on the application and in the fine print, because in the very nature of things we know it did not occur.

We refer the court to Continential Ins. Co. v. Pierce, 7 Am. St. Rep. 557. This is a very instructive case in which under its holding we contended that the court should have allowed the plaintiffs theory which was supported by his testimony, to go to the jury. Also in the case in 39 Am. St. Rep. 356, there are the same points raised, and is very much in line. There is a long note in 9 Am. St. Rep., beginning at page 229 which also fully discusses those propositions which were sought to be put to the jury by the plaintiff's instructions and denied by the court.

The nefarious practice of these miserable little insurance companies, whereby they entrap the ignorant into parting with their money for a contract which is represented by the insurer to pay him so much money in event of accident, and the many miserable mean schemes that such companies have to cut the plaintiff off from recovery in event of suit, ought not to be countenanced by the courts of justice in this country. The rule ought to be in this state, and some day it will be the decisions of our court, or by statute, that where the insurance company accepts premiums for such policies, that in event of accident they shall pay the amount fixed in their policy. Certain it is in our minds that the court should have submitted the question to the jury as to whether or not the misrepresentations were material to the risk incurred, if they were not made, or if they were immaterial then this poor negro should have been allowed to recover, but the trial court took away from him that right by instructing the jury in all of its instructions, and without qualification, that they should find for the defendant if they believed he signed the application.

Neville & Stone, for appellee.

The jury found by their verdict that the appellant signed the application in this case, and the appellant testified that if he signed it he read it. We therefore submit that if the statements in the application and in the policy, with reference to the appellant's never having hernia, and never having been injured, etc., were warranties, then the only issue to be submitted to the jury was whether or not the defendnat signed the application.

We shall undertake later on to show that the statements made in the application and in the policy were warranties and not representations.

Now as to whether...