Interstate Life & Acc. Ins. Co. v. Smith

Decision Date03 April 1972
Docket NumberNo. 46604,46604
Citation260 So.2d 453
PartiesINTERSTATE LIFE AND ACCIDENT INS. CO. v. Susie SMITH.
CourtMississippi Supreme Court

Thomas J. Wiltz, Biloxi, for appellee.

RODGERS, Presiding Justice.

This case came to this Court on appeal from a judgment of the Circuit Court of Harrison County, Mississippi, in which a judgment of the County Court, in favor of appellee, was affirmed. The County Court rendered a judgment in favor of Susie Smith for the sum of two thousand dollars ($2,000.00), the principal amount alleged to have been due to her as beneficiary under an insurance policy issued to her deceased husband during his lifetime.

The record reveals that Curtis S. Smith was employed by McDaniel and Sons Funeral Home at the time he purchased a life insurance policy from Interstate Life and Accident Insurance Company. His application for the original policy, No. 19636646 was for the sum of one thousand dollars ($1,000.00). The insured Curtis S. Smith stated that he was forty-five (45) years old at the date of the application. He stated that he was born January 9, 1919. The insurance company issued the policy requested and in the body of the policy the insurance company agreed that the insured could purchase additional insurance from the company under the following conditions:

'If your issue age is 45 years or less, we will issue to you without evidence of insurability a Whole Life policy on the second anniversary of this policy for twice the fact amount of this policy. The new policy shall be limited to a maximum of $3,000. In addition, if your issue age is 35 years or less, we will issue to you without evidence of insurability a Whole Life policy on the fifth anniversary of this policy for the face amount of this policy. The new policy shall be limited to a maximum of $1,500.

'To obtain this additional insurance an application and full first premium must be received by us at our Home Office 90 days or less before the specified anniversary date of this policy and this policy must be in full force with no premiums in default on the specified anniversary date.'

Thereafter, on September 5, 1966, the insurance company automatically issued a second policy, No. 20975343, to the insured for the face amount of two thousand dollars ($2,000.00) without requiring the insured to advance the first premium mentioned in the 'Option to Purchase.' The written application for the original policy was not attached to either of the policies. The insured died on February 10, 1968, at a time when the premiums had been fully paid on both policies. The undertaker who received the body at the Veterans Administration Hospital was informed by some unknown person that the deceased was born on January 9, 1918.

The undertaker assisted Susie Smith in preparing the proof of death claim under the policies for the insurance company, and in so doing he used the information obtained at the Verterans Hospital. However, the testimony shows that neither the widow nor any members of their respective families knew the exact date of the insured's birth. The proof of death form had printed at the bottom of the form that: 'The foregoing information is complete and true to the best of my knowledge and belief.' The widow, beneficiary, signed the proof and mailed it to the insurance company.

Thereafter, the insurance company's representative went to the widow and advised her he had come to pay her off, but requested her to sign two papers. These two papers turned out to be two applications to change the two policies so as to show that the insured was born January 9, 1918. The agent gave the widow two checks, one for the sum of one thousand dollars ($1,000.00) and the other for the sum of one hundred eight-one dollars and fifty cents ($181.50). The smaller check was returned to the insurance company by the widow.

The insurance company now contends that the widow is estopped to claim payment The proof of death had attached thereto a certified copy of the death certificate obtained from the Registrar of Vital Statistics. The funeral director, W. B. McDaniel, typed on the bottom of the death certificate the following:

under the terms of the second policy because of these two applications to change the date of birth mentioned in the application. The company also claims that the death certificate filed with the State Registrar of Vital Statistics is conclusive as to the date of the birth of the deceased Curtis Smith.

'Attention; Please

To the best of my knowledge, This Army Record is the Truest to his Correct Age. We don't have a birth Certificate.

W. B. McDANIEL & SON

FUNERAL SERVICE

By /s/ W. B. McDaniel'

The insurance company contends (1) that the deceased misstated his age; (2) that appellant has the right to controvert the claim even though no application was attached to the policy, for the reason that the policy itself sets forth the age requirement; and (3) that the policy is void ab initio because it would not have been issued had the deceased not misstated his age on his original application for insurance.

It is accepted as a general rule of insurance law that the insurer has the burden of proof to establish an affirmative defense relied upon to work a forfeiture of the insurance contract. Davis v. Gulf States Insurance Co., 168 Miss. 161, 151 So. 167 (1933); Jefferson Standard Life Insurance Co. v. Jefcoats, 164 Miss. 659, 143 So. 842 (1932); Massachusetts Protective Assn. v. Cranford, 137 Miss. 876, 102 So. 171 (1924); Grangers' Life Insurance Co. v. Brown, 57 Miss. 308 (1879); Fidelity & Casualty Co. of New York v. Love, 111 F. 773 (5th Cir. 1901); Cotton v. Fidelity & Casualty Co., 41 F. 506 (C.C.1890); Coburn v. Travelers' Insurance Co., 145 Mass. 226, 13 N.E. 604 (1887); Chambers v. Northwestern Mutual Life Insurance Co., 64 Minn. 495, 67 N.W. 367 (1896); Anno. 123 A.L.R. 1409 (1939).

The burden of proving the falsity of the representations made by the insured as to his age is upon the insurance company. See the many cases collected in 1 A.L.R. 469 (1919) and 160 A.L.R. 311 (1946); Afro-American Sons & Daughters v. Webster, 172 Miss. 602, 161 So. 318 (1935).

Moreover, the testimony that the insured falsified his age in order to obtain insurance must be positive, clear, and convincing to result in a forfeiture of the policy. Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S.W. 995 (1912); McArthur v. Home Life Assn., 73 Iowa 336, 35 N.W. 430 (1887); Andrus v. Business Men's Accident Assn. of America, 283 Mo. 442, 223 S.W. 70, 13 A.L.R. 779 (1920); Anno. 1 A.L.R. 469 (1919); Anno. 81 A.L.R. 852 (1932); Anno. 117 A.L.R. 795 (1938).

The insurance company contends that the proof offered by it is sufficient to meet the burden required of it by law. It says that it received a proof of death, prepared by appellee's witness and signed by appellee. The record shows, however, that this proof has written on the bottom of the certificate the words above set out wherein the beneficiary expressly states the information was '. . . to the best of my (her) knowledge . . . we do not have a birth certificate.'

The insurance company then argues that it also offered in evidence two signed requests for policy changes signed by the beneficiary requesting the insurer to change the age of the insured in both policies of insurance. The beneficiary explains this by saying that she signed some papers when an agent brought her the checks. She did not think they were filled out, but that when he handed her the checks she found that one of the checks was not for the amount...

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3 cases
  • Russ v. Safeco Ins. Co. of Am., CIVIL ACTION NO. 2:11cv195-KS-MTP
    • United States
    • U.S. District Court — Southern District of Mississippi
    • March 26, 2013
    ...Church of Jackson v. Bhd. Mut. Ins. Co., No. 3:09cv34, 2010 WL 2817071, at *5 (S.D. Miss. July 15, 2010); Interstate Life & Accident Ins. Co. v. Smith, 260 So. 2d 453, 455 (Miss 1972). 17. "The incendiary fire is one intentionally ignited under circumstances in which the person knows that t......
  • Wells Fargo Bank, N.A. v. Lincoln Benefit Life Co.
    • United States
    • U.S. District Court — Northern District of Georgia
    • February 28, 2017
    ...date of birth because it was provided to document her death, not to confirm her date of birth. See Interstate Life & Accident Ins. Co. v. Smith, 260 So. 2d 453, 456 (Miss. 1972) (death certificate could not be used to establish the date of birth of the deceased insured because "to put the d......
  • Home Ins. Co. v. Olmstead
    • United States
    • Mississippi Supreme Court
    • February 22, 1978
    ...the issuance of the policy. The Home Insurance Company cites no cases in support of its argument. In Interstate Life & Accident Ins. Co. v. Smith, 260 So.2d 453 (Miss.1972), we stated that the burden is on the insurer to establish an affirmative defense relied upon to work a forfeiture of t......

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