Metropolitan L. Ins. Co. v. Scott

• Decision Date: 04 May 1931
• Docket Number: 29364
• Citation: 134 So. 159,160 Miss. 537
• Court: Mississippi Supreme Court
• Parties: METROPOLITAN L. INS. CO. v. SCOTT

134 So. 159

160 Miss. 537

METROPOLITAN L. INS. CO. v. SCOTT

No. 29364

Supreme Court of Mississippi

May 4, 1931

Division A

INSURANCE. Insurer's failure to deliver copy of application with life policy held not to preclude reliance on express conditions appearing in policy itself (Code 1930, section 5174).

Life insurance policy in question was complete in itself and purported to contain in plain language all the terms conditions, and stipulations of the contract. Both application and policy contained representations or stipulations in reference to the same subject-matter. Insurer in suit on policy offered to show breach of express conditions and warranties contained in policy. Evidence offered would also have had effect of denying or showing falsity of representations contained in application which was not delivered with policy.

HON. R L. CARHAN, Judge.

APPEAL from circuit court of Adams county, HON. R. L. CARHAN, Judge.

Suit by Clarence Scott, administrator of the estate of Hattie Scott deceased, against the Metropolitan Life Insurance Company. Judgment for the plaintiff, and the defendant appeals. Reversed, and cause remanded.

Reversed and remanded.

Wells, Jones, Wells & Lipscomb and W. R. Newman, Jr., all of Jackson, for appellant.

It is admitted by the defendant that a copy of the insured's application was not delivered to the insured with the policy, but it is our contention that due to the wording of the policy involved in this suit the appellant had a perfect right to offer evidence to substantiate and prove its special pleas even though a copy of the application was not attached to the policy. Section 5174 of the Code of 1930 in substance states that upon a failure to attach copy of the application to the policy the life insurance company shall not be permitted in any court of this state to deny that any of the statements in said application are true. It will be noted from the special pleas filed in this case that there is no attempt on the part of the appellant to show that any statements in the application for the insurance are untrue. The special pleas referred to in no instance mention the application, nor is the application mentioned at any other place on behalf of the appellant. It was not introduced into evidence by the appellant and was not made a part of this record by the appellant.

The provisions of the policy are clear and unambiguous. It states on its face that it constitutes the entire agreement between the parties and makes no reference to the application and does not endeavor to incorporate the application in the policy or make it a part of the contract. The policy is a contract in its entirety. This policy of insurance is not like most life insurance policies which do refer to the application and which do attempt to incorporate the application in the policy and which do not contain the conditions as set forth in this policy.

Failure to deliver copy of application with life policy did not preclude reliance on express condition appearing in the policy itself.

Kirkpatrick v. London Guarantee & Accident Company, Ltd., 115 N.W. 1107; Connell v. Metropolitan Life Insurance Co., 16 Pa. S.Ct. 520; Panopoulos v. Metropolitan Life Insurance Company, 96 S.Ct. 325.

For other cases to the effect that where the application is not attached to the contract where the statute requires such attachment, holding that the contract and case is to be treated as if no application existed.

Lenox v. Greenwich Insurance Co., 165 Pa. St. Rep. 575; Norriston Title, etc., v. Hancock Ins. Co., 132 Pa. 385;

Hebb v. Ins. Co., 138 Pa. 174; Morriss v. Mutual Life Ins. Co., 183 Pa. 563; Moore v. Bestline, 23 Pa. S.Ct. 6; Southern Life Ins. Co. v. Webber, 209 S.W. 716; Washington Fire Relief Ass'n v. Albro et ux. (Wash.), 226 P. 264; 14 R. C. L. 886; Metropolitan Life Ins. Co. v. Chappell, 269 S.W. 21.

The statute up for construction in this case is in derogation of the common law and should be strictly construed.

Goodman v. Lang (Miss.), 130 So. 50; Dibell v. Dandridge, 51 Miss. 55; Hollman v. Bennett et al., 44 Miss. 320; Edwards v. Gaulding, 38 Miss. 118.

Kennedy & Geisenberger, of Natchez, for appellee.

While the Mississippi statute, section 5174, Code of 1930, applies to all policies of life insurance, the same is not true of the Iowa and Pennsylvania statutes. Therefore, it necessarily follows that the cases interpreting and construing the statutes of those states, and laying down rules of law thereunder, are not authorities upon the construction of our statute, and this, of course, applies with equal force to the cases from other jurisdictions cited in appellant's brief which follow the holding of the Iowa and Pennsylvania cases.

The purpose of the statute, section 5174, is not, as appellant claims, the same as the statute requiring proffert to be made of certain documents; if it was, then it could have been incorporated in the same section of the code dealing with proffert. Proffert has to do with evidence and rules thereon, but this section of our code, has been held by our court to be not one laying down a rule of evidence or procedure, but to be a rule of substantive law.

Sovereign Camp of Woodmen of the World v. Farmer, 77 So. 655; Hartford Accident and Indemnity Co. v. Natchez Investment Co. et al., 119 So. 366.

Each and every word of section 5174 having been written into the policy of insurance issued by appellant, it would do violence to both the law and to common sense to consider for one moment that the so-called warranties and conditions precedent, contained in said policy, so far as they relate to the diseases and ailments mentioned in the application, can have any force or effect whatsoever as against the rights of the plaintiff to a judgment in this case, for the very plain and simple reason that the contract would be worse than ambiguous -- it would be one whose terms were altogether contradictory, and one in which each succeeding provision denies the one preceding.

While the penalties of the statute may be somewhat severe, nevertheless, their necessity was made clearly apparent before they were at last passed into law. And it is so easy for the insurance companies to comply with the statute and escape the effects of noncompliance, that it is hard to conceive why they will ignore it. In the case at bar, for instance, they require the application, receive it, had it at their home office. It would have been only a matter of putting it in the folder with the policy itself and delivering it to the insured to avoid any such questions, as are now before this court, from arising.

In the case of New York Life Ins. Co. v. Rosso, 154 Miss. 196, 122 So. 382, the court held that by failure to deliver to the insured a copy of an amendment to his application the insurance company was estopped and precluded from denying the truthfulness of the allegations therein contained and this holding was made by our court in the face of the fact that the original application was endorsed on the policy and made a part of it, and, by its terms, defeated recovery by the insured if he was then suffering from any of the excepted diseases or had made any material misstatements therein.

OPINION

Cook, J.

The appellee, Clarence Scott, administrator of the estate of Hattie Scott, deceased, instituted this suit in the circuit court of Adams county against the appellant, Metropolitan Life Insurance Company, seeking to recover on a policy of life insurance for five hundred dollars issued to the said Hattie Scott, and payable, in the event of death of the insured prior to the date of the maturity of the endowment, to the executor or administrator of the insured. Upon the trial of the cause there was a verdict and judgment in favor of the appellee, which was entered in pursuance of a peremptory instruction so directing, and from this judgment this appeal was prosecuted.

The policy of insurance was issued by the appellant on the 1st day of October, 1929, and the insured died on the 23d day of December, 1929. The policy, the original of...