Metropolitan Casualty Ins. Co. v. Cato

• Decision Date: 13 February 1917
• Docket Number: 18795
• Citation: 74 So. 114,113 Miss. 283
• Court: Mississippi Supreme Court
• Parties: METROPOLITAN CASUALTY INS. CO. v. CATO

74 So. 114

113 Miss. 283

METROPOLITAN CASUALTY INS. CO. v. CATO

No. 18795

Supreme Court of Mississippi

February 13, 1917

Division A

APPEAL from the circuit court of Washington county, HON. FRANK E EVERETT, Judge.

Suit by William R. Cato against the Metropolitan Insurance Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Case affirmed.

L. A Smith, for appellant.

Where a policy is issued on faith of an application containing statements, in fact, untrue, there was no meeting of minds of the parties on one of the essential elements of the contract and, therefore, there was such a mistake as would authorize relief in a court of equity for the cancellation of the policy, says the court in the case of Pacific Mutual v Glazier, 150 S. W., 549. There is also the Mississippi case of Fidelity Mutual Life v. Miazza, 93 Miss. 18, and 423, in which this court held that evidence of the insured, prior to his application for insurance, having suffered from an attack of acute mania was admissable to show misrepresentation as to his physical condition. This case might be parallel to the instant case by substituting "chronic malarial poisoning" or "facial paralysis" for an "acute attack of mania." It does not matter whether appellee was sound when policy was issued, as that was a mere clerical detail, but the point is, that he had imposed on the appellant a concealment and misrepresentation covered up by untrue answers, the truth of which he warranted, in stating that he had never had a chronic disease, while the proof shows that he in fact had chronic malarial poisoning before he applied to appellant for insurance. On page 49 of the record, Dr. Cheek testified that he also had detected the albument, and also that he knew of the paralysis suffered by Mr. Cato. American Central Insurance Co. v. Antrim, et al., 38 So. 26.

The assured concealed the previous existence of a chronic disease, and his answer to warranty No. 19, of the application, was neither complete nor true, and as every man is presumed by law to have intended to do that which he actually did do, there can be no escape from the fact that Mr. Cato's application in this regard was a fraudulent representation, and he must abide the consequence because there was in fact one true condition of affairs with reference to his past health, but it was not truthfully reported to the insurance company by the warranties made by Mr. Cato himself and in writing. Warranties on the part of the assured which were made a part of the contract are binding upon him, and if they are false this precludes a recovery on the policy. 1 C. J. 422. Warranties must be literally fulfilled. Vancleave v. Union Casualty Co., 82 Mo.App. 668. An insurance company may make immaterial representations warranties. (Bonewell v. North American Accident Insurance Co., 160 Mich. 137, 125 N.W. , 56), yet no one can deny that materiality essentially and fundamentally of the representations in this case made by Cato, and yet if they had been immaterial, that is if facial paralysis be a trivial disease, its trivality cannot be availed of by the appellee to offset his having concealed it, because his representations are all warranties, regardless of their materiality. However, this court knows of its own knowledge, and hence will take judicial notice, of the fact that chronic malarial poisoning is neither trivial nor immaterial.

Where insured, through no misapprehension or ignorance, signs an accident insurance application, which makes false statements material to the risks, he cannot recover on the policy. 66 So. 218. A party who has been fraudulently betrayed into making a contract may resume possession of his property on returning that which he himself has received. Duy v. Higdon, et al., 50 So. 378. The company returned two hundred and seventy-five dollars and received according to the declaration, at page 4, nineteen dollars and fifty-six cents.

The next matter involved in this case is the extent of the disability of the appellee, for the period made in his declaration. There is no contention on the part of the appellant against the truth of the claim of Mr. Cato's original, total disability, but it is earnestly insisted, and contended, that his disability in the period from December 16, 1913, to September 22, 1915, which is the period for which he is suing, and asking twenty-five dollars per week, was neither continuous nor total. This court has never passed on the difference between total and partial disability, nor has total disability, nor partial disability, ever been defined by the supreme court of this state. It is not necessary to define either of them in this case, as the policy contract plainly and unambiguously defines both. The question then was for the jury below to determine which definition in the policy fitted the condition and acts of Mr. Cato. We recognize the rule that courts construe policies of insurance against the insurer as strongly as is compatible with the language of the contract, but the words of a policy must be given meaning which those same words bear in other contracts. So, where it was plain that it was the intention of the insurer by its contract (and the insured is charged with the knowledge of the contents and meaning of the policy) that there should be two classes or grades, of liability, and that each class, or grade, of liability should attach to certain circumstances only as defined by the policy, the courts will maintain the intent and import of the contract. All parties are free to make such contracts as they please so long as no fraud, or deception, or violation of public policy is involved, and it is the duty of the court to construe and enforce contracts, and not to amend, alter, enlarge, or restrict or make them.

Then the question for this court to decide is whether or not, under the proof in this case, there was sufficient evidence to justify the judge in submitting to the jury for its decision the issue of whether or not by the language of the policy Mr. Cato was totally or partially disabled from performing the duties of his particular occupation. It is not a question as to what generally and ordinarily is regarded to be total and partial disability, but simply the meaning of those terms as defined by the parties to the contract. Volume 7, page 6791, of Words and Phrases: 25 N.W. 918, 920; 64 Am. St. Rep. 569; Mutual Insurance Co. v. Ingraham, 34 Miss. 215.

The case of Hefner v. F. & C. (Texas C. C. A.), 160 S.W. 330, will possibly be quoted by opposing counsel to support their side of this case, because the Texas court construed total disability to mean only substantial disability, but the same court also held in F. & C. v. Getzendanner, 53 S.W. 858, that it was reversible error to charge that if injury prevented the insured from performing any and every duty essential to his occupation "reasonably as effective" as he would but for the injury, he was totally disabled.

In Rayburn v. Penn Casualty (N. C. S. C.), 53 S.E. 283, the insured was a section foreman, and returned to work with the same number of hands under Lim, and at the same salary, as before the accident, and continued under those conditions until the time of the trial; he was held not entitled to recover after he went back to work, though not able to perform all of his duties.

In Coad v. Travelers (Neb. S. C.), 85 N.W. 558, it was held that where there are different branches of business pertaining to the occupation, the prosecution of one of which might be prevented by an injury, and yet another carried on, the insured was not "prevented from performing any and every duty."

In McKinley v. Bankers (Iowa S. C.), 75, N.W. 670, it was held that where the insured was disabled eight weeks, during four of which he had been at his place of business and performed light work, though not attending to his regular duties, he was entitled to recover only for four weeks.

In Spicer v. Comms. Mut. (Dauphin Co. Pa. C. P.) 53 Legal Intelligencer, 209, it was held that the insured could not recover where he was able to, and did transact some parts and some kinds of business pertaining to his occupation, and to some extent attended to all of his duties. Foglesong v. Modern Brotherhood (Kan. Cy. C. A.), 97 S.W. 240.

The above cases have mostly to do with the court defining what is total disability, and what falls short of being total disability, and they are of assistance in this case to show what other courts have held to be less than total disability and consequently have held to be partial disability, as being enlightening upon the reasonableness and justness of the definition of what would be partial disability in this case, as agreed upon by the parties in the beginning of their contract, and hence must be taken as having been in contemplation of each of them when the contract was made.

In Smith v. Supreme Lodge, 62 Kan. 75, 61 P. 416, it was said: "He cannot recover under the contract of insurance which fixed the right of one party, and the liability of the other, unless he sustained a total disablement; that is, a complete disablement to perform the business of a druggist." Among the cases cited with approval by the court, in that case are Saveland v. Fidelity, Etc., 67 Wis. 174, 30 N.W. 287, 58 Am. Rep. 863, and Lyon v. Railway Pass. Assurance Co., 46 Iowa 631; Hooper v. Accident, Death Insurance Co., 5 H. and N. 302, 546, 8 N.Y.S. 263.

The occupation of the insured must be considered in determining whether he has been totally disabled from transacting the business thereof. 29 P. 1113. The court in Iowa Massachusetts, Nebraska, Pennsylvania, Wisconsin, and Georgia hold that when the indemnity provided in the policy is as to injuries...