Messina v. New York Life Ins. Co

• Decision Date: 06 May 1935
• Docket Number: 31704
• Citation: 173 Miss. 378,161 So. 462
• Court: Mississippi Supreme Court
• Parties: MESSINA et al. v. NEW YORK LIFE INS. CO

161 So. 462

173 Miss. 378

MESSINA et al. v. NEW YORK LIFE INS. CO

No. 31704

Supreme Court of Mississippi

May 6, 1935

Division B

1 CONTRACTS.

In construing contract, effect must be given to every provision therein unless parts are in unavoidable conflict.

2 INSURANCE.

Incontestable provision in policy cannot be used as a means of rewriting the contract by striking out other valid and unambiguous provisions governing the ultimate amount payable under the policy.

3 INSURANCE.

Provision in policy for adjustment of amount payable according to true age of insured held not invalid as providing for "contest" of policy within meaning of incontestable clause so as to be barred thereby.

4 EVIDENCE.

Rule that subsequent statements of insured cannot be received to adversely affect interests of beneficiaries does not apply, where insured reserves right to change beneficiaries.

5. EVIDENCE.

In action on policy where payment of full amount was resisted on ground that insured had misstated his age, admitting registration books and naturalization papers to show insured's age held not error as affecting interest of beneficiaries by declarations made by insured subsequent to issuance of policy, where insured reserved right to change beneficiaries.

6. EVIDENCE.

When a rough approximation of age of person is sufficient for purpose of particular inquiry, general practice is to allow witnesses to answer to age as matter of opinion, and even when very nearly exact age is subject under investigation, opinion evidence is admissible under rule of necessity when no better and no higher class of evidence is practicably obtainable.

7. EVIDENCE.

It is common knowledge that there is nothing more uncertain and undependable than attempt to fix exact age of a person by his appearance and conduct, particularly when proffered opinions are based on appearance of person after he has reached middle age.

8. EVIDENCE.

Best proof of age is testimony of living witnesses who were present at birth and distinctly remember the event, or who, although not present, yet were so situated as to have positive knowledge and remembrance of the date thereof.

9. EVIDENCE.

Definite statements or declarations of person whose age is in question, made by him during his lifetime on solemn occasions when it was his bounden duty to speak the truth, are admissible when there is no motive on his part to speak other than the truth.

10. EVIDENCE.

In action on life policy where full payment of policy was resisted on ground of insured's misrepresentation of age, and evidence of birth certificate, registration books, and naturalization papers relative to insured's age had been produced, and accepted, excluding evidence of age based on mere opinions of insured's friends and founded on mere physical appearance and actions of insured at time of his death held not error.

11. EVIDENCE.

Generally, necessity lies at foundation of rule as to admissibility of opinion evidence as to age and, when necessity for opinions no longer exists, opinions are ordinarily no longer admissible.

HON. JULIAN P. ALEXANDER, Judge.

APPEAL from the circuit court of Hinds county, HON. JULIAN P. ALEXANDER, Judge.

Action by S.D. Messina and others against the New York Life Insurance Company. From an adverse judgment, plaintiff appeals. Affirmed.

Affirmed.

E. E. Hindman and Hamilton & Todd, all of Jackson, for appellants.

In the case at bar the policy makes no reference to an application. The policy alone contains the entire contract of the parties.

Germania Life Ins. Co. v. Bouldin, 56 So. 609.

The policy itself does not show the age of the insured. On the back of the policy are the words: "Age 42." That, however, is no part of the contract.

32 C. J. 1159, sec. 269.

It is competent to prove age of a person by the testimony of witnesses who had known such person for many years.

Wigmore on Evidence, sec. 660, page 755; Winter v. State, 123 Ala. 1, 26 So. 949; People v. Bond, 13 Cal.App. 175, 109 P. 150; Libre v. Brotherhood of Am. Yeoman, 168 Ill.App. 328; Elsner v. Supreme Lodge, K. L. H., 98 Mo. 640.

In New York Life Ins. Co. v. Manning, 124 N.Y.S. 775, the court said that the policy expressly declared that it was incontestable, and that the insurer could not avoid its obligation on the ground of fraud or misrepresentation.

In the following cases a clause providing for incontestability from date, and allowing no period for the insurer to investigate after the issuance of a policy, has been held valid, and given effect so as to bar the insurer from asserting fraud:

National Annuity Asso. v. Carter, 96 Ark. 495, 132 S.W. 633; Duvall v. National Life Ins. Co., 28 Idaho 356, L.R.A. 1917E 333; Union Cent. L. Ins. Co. v. Fox, 106 Tenn. 347, 82 Am. St. Rep. 885; MacKendree v. Southern States L. Ins. Co., 99 S.E. 806; Patterson v. Natural Prem. Mut. L. Ins. Co., 100 Wis. 118, 42 L.R.A. 253, 69 Am. St. Rep. 899.

There is no question of fraud projected into this case, the company does not allege any fraud, and has offered no proof of such defense. In the absence of fraud, the incontestable clause as we have in this policy will stand, and no reduction of amount provided for will be permitted.

Welch v. Union Cent. L. Ins. Co., 50 L.R.A. 774, 78 N.W. 853; Germania Life Ins. Co. v. Bouldin, 56 So. 609; Eastern District Piece Dye Works v. Travelers' Ins. Co., 26 A.L.R. 1514.

The appellants should have been permitted to present to the jury the testimony of witnesses, who had known insured for many years, as to age of insured at time of his death in January, 1934.

Wigmore on Evidence, sec. 660, page 755; Winter v. State, 123 Ala. 1, 26 So. 949; Libre v. Brotherhood of American Yeoman, 168 Ill.App. 328; Elsner v. Supreme Lodge, K. L. H., 13 Cal.App. 175, 109 P. 150.

The original policy in this case is filed with the record and is before this court for inspection. An examination of the policy, issued in the year 1901, over thirty-four years old, will plainly show that it is very different from modern policies in several material respects. The wording of the incontestable clause is materially different. It simply says: "This policy is incontestable from date of issue."

In the present policy, the incontestable clause is absolute in form and contains no exception.

Mutual Life Ins. Co. of New York v. New, 125. La. 41, 51 So. 61, 27 L.R.A. (N.S.) 431.

The issue before the court was Joseph Messina's age at the time he made the application in 1901. To prove his age then it was competent to show what his age was at any other time.

State v. Koettgen, 88 N. J. L. 51, 95 A. 747; Wigmore on Evidence, sec. 660.

Watkins & Eager, of Jackson, for appellee.

An insurance company is not precluded by the incontestable clause from adjusting the amount due under the terms of the policy according to the true age of the insured.

Murphy v. Trav. Ins. Co., 234 N.Y.S. 278; Sipp v. Phil. Ins. Co., 142 A. 221; Met. Ins. Co. v. Beha, 235 N.Y.S. 501; Sanders v. Ins. Co., 10 F.2d 143; Hancock Ins. Co. v. Ricks, 183 N.E. 93; Jolley v. Ins. Co., 154 S.E. 400; N. A. Union v. Trenner, 138 Ill.App. 586; Met. Ins. Co. v. Lambert, 157 Miss. 759; A. Ins. Co. v. Serio, 157 So. 474.

Appellee proved, that the policy was based on the assumption that insured was born in 1859 and that the premiums paid if birth was in 1852 would have only purchased two thousand four hundred ninety-three dollars and eighty-one cents of insurance. Appellee had a right to reduce the amount due appellants if insured had misstated his age or also if the assumption was merely incorrect.

Metro. Ins. Co. v. Scott, 160 Miss. 537; 33 C. J., secs. 837 and 842, pages 113 and 117; Eddleson v. Met. Ins. Co., 158 N.Y.S. 1018.

Appellee insurer sustained its burden of proof that insured was born in 1852 by the strongest kind of evidence, namely, official records and sworn written admissions of insured. The same was material, relevant and competent.

22 C. J., pages 232, 297-317 and 801; Sections 1564, 1585 and 6184, Code of 1930; State v. Oliver, 78 Miss. 5; Grenada Cotton Compress Co. v. Atkinson, 94 Miss. 93; Branch v. State, 80 So. 482; Bertram v. Adm., Ann. Cas. 1912A 1217; Pickering v. Peskind, 183 N.E. 301; Love v. State, 125 So. 685; Landers v. Hayes, 72 So. 107; Clark v. Wessendorf, 275 P. 925; State v. Abernathy, 130 S.E. 619; Farmer v. Orme, 21 P.2d 977; U.S.C. A., Title 8, secs. 356 and 398, note 1617; 22 C. J. 1070, 1083 and 1089; Des Moines Bd. v. Taylor, 108 N.W. 927; Fitchburg v. Luerenburg, 102. Mass. 358; Clark v. Slidell, 5 Rob. 330; Adams v. Carter, 25 So. 669; Watkins v. Miss. State Bd., 154 So. 277; Mullens v. Shaw, 77 Miss. 900; Bridges & Hill v. Sup., 58 Miss. 817; Mallory v. Walton, 81 So. 113; Self v. N. Y. Life Ins. Co., 56 F.2d 364; Hews v. Equitable, 143 F. 850; Benefit Assn. v. Armbruster, 129 So. 78; Atlanta Mut. v. Price, 97 So. 826; Dye Works v. Travelers Ins. Co., 26 A.L.R. 1505; Granger's Ins. Co. v. Brown, 57 Miss. 308; Equitable Life v. Campbell, 151 N.E. 682; Spaulding v. Mutual Ins. Co., 109 A. 22; Institute v. Lingenfelser, 146 A. 123; Wold v. City, 9 P.2d 931; Cook Const. Co. v. Crawford, 26 F.2d 574, 49 S.Ct. 29; Lundgren v. U. Ind., 213 N.W. 553.

Admissions, particularly written admissions, and more particularly admissions under oath, are a highly satisfactory character of evidence and cogent proof is required to overcome the same.

22 C. J., sec. 507, page 424; Smiley v. Mut. Ins. Co., 52 S.W.2d 12; Mindlin v. Dorfman, 189 N.Y.S. 265; Spurlock v. Brown, 18 S.W. 868; Moore v. Grayson, 64 P. 1074; In re Weissman, 37 F.2d 585.

Plaintiff appellants' opinion evidence based solely on the appearance of insured was inadmissible in this case.

The opinion evidence sought to be...