Mutual Health & Benefit Ass'n v. Cranford, 31337

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: McGowen, J.
• Citation: 173 Miss. 152,156 So. 876
• Parties: MUTUAL HEALTH & BENEFIT ASS'N v. CRANFORD
• Docket Number: 31337
• Decision Date: 15 October 1934

156 So. 876

173 Miss. 152

MUTUAL HEALTH & BENEFIT ASS'N
v.
CRANFORD

No. 31337

Supreme Court of Mississippi

October 15, 1934

Division A

Suggestion Of Error Overruled November 19, 1934.

APPEAL from the circuit court of Jones county HON. W. J. PACK, Judge.

Action by Dr. Roland Houston Cranford against the Mutual Health & Benefit Association. From a judgment of the circuit court dismissing defendant's appeal from a judgment of the county court for plaintiff, defendant appeals. Affirmed.

Affirmed. Suggestion of error overruled.

[173 Miss. 153] Watkins & Eager, of Jackson, for appellant.

Answers to, questions propounded in the application and which are admittedly untrue were material to the acceptance of the risk as a matter of law.

Hoke v. Insurance Co., 103 Miss. 269, 60 So. 218; Great Eastern Casualty Co. v. Collins, 126 Ind. 86; Wyss-Thalman v. Maryland Casualty Co., 193 F. 55; March v. Metropolitan Life Ins. Co., 186 Pa. 629, 65 Am. St. Rep. 887; Penn Mut. Life Ins. Co. v. Mechanics Bank & Trust Co., 73 F. 413, 38 L.R.A. 33.

Where misstatements appear in application which are material and where true facts are known to the insured, there is a presumption of intent to defraud.

Claflin v. Insurance Co., 28 L.Ed. 76; Fidelity & Casualty Co. v. Bank of Timmonsville, 139 F. 101; New York Life Ins. Co. v. Wertheimer, 272 F. 730; Mutual Life v. Hurni Packing Co., 260 F. 641; Fidelity Mutual Life Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817; Cooperative Assn. v. Leflore, 53 Miss. 1.

There are two well defined exceptions to the general rule that knowledge or information acquired by a soliciting agent is imputed to the insurance company.

New York Life Ins. Co. v. Smith, 129 Miss. 543, 91 So. 456; Fidelity Casualty Co. v. Cross, 131 Miss. 632; Phenix Mutual Life Ins. Co. v. Raddin, 120 U.S. 183, 30 L.Ed. 644.

Where the insured knowingly makes false statements in his application about material facts and has reasonable ground to suspect that these statements will not be communicated to the company, there can be no recovery.

McCormick v. Security Mutual Life Ins. Co., 116 N.E. 74; Zeidel v. Connecticut General Life Ins. Co., 44 F.2d 843; Keeton v. Jefferson Standard Life Ins. Co., 5 F.2d 183; Mutual Life Ins. Co. v. Hilton-Green, 241 U.S. 613, 60 L.Ed. 1202; Priest v. Kansas City Life Ins. Co., 227 P. 538; American Ins. Co. v. Gilbert, 27 Mich. 429; United States Life Ins. Co. v. Smith, 92 F. 503; Henson v. John Hancock Life Ins. Co., 247 N.W. 102; Wichita Falls Protective Assn. v. Lewis, 52 S.W.2d 134; Preferred Life Assur. Society v. Thompson, 170 Miss. 575.

Before the insurer can be estopped to defend because of misstatement in the application about material facts, it must be shown that the information acquired by the agent was full, complete and definite.

New York Life Ins. Co. v. Goerlich, 11 F.2d 838; Missouri State Life Ins. Co. v. Dossett, 265 S.W. 254; Metropolitan Life Ins. Co. v. Trunick, [173 Miss. 154] 54 S.W.2d 917; Thompson v. Metropolitan Life Ins. Co., 153 S.E. 527; Life & Casualty Co. v. King, 195 S.W. 585; South v. Philadelphia Fire & Marine Ins. Co., 290 S.W. 493; Germania Life Ins. Co. v. Lauer, 97 S.W. 363; Ordway v. Continental Ins. Co., 35 Mo.App. 426; Maloney v. N.W. Masonic Aid, 8 A.D. 575, 40 N.Y.S. 918; Thompson v. Metropolitan Life Ins. Co., 99 N.Y.S. 1006.

The insured's statement in application that he agreed to notify the association promptly of any change in his occupation or if he took additional insurance, was a continuing affirmative warranty; therefore, any additional insurance taken without notice to the association immediately rendered the policy void without regard to materiality or intent.

Imperial Fire Ins. Co. v. Cross, 151 U.S. 449, 39 L.Ed. 331; Franklin State Bank v. Maryland Casualty Co., 256 F. 356; 3 Cooley's Brief on Insurance, page 2338; Burgess v. Equitable Marine Ins. Co., 30 Am. Rep. 654; Dustin v. Interstate Business Men's Assn., 159 N.W. 394; Gasner v. Metropolitan Ins. Co., 13 Minn. 483; Insurance Co. v. Sorsby, 60 Miss. 302; National Fire Ins. Co. v. Provine, 148 Miss. 659.

False statements knowingly made by the assured to the insurer in the proof of loss for the purpose of inducing the insured to pay the claim will avoid the policy.

Springfield Fire & Marine Ins. Co. v. Nix, 138 So. 498; National Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730.

The circuit court (appellate court) erred in sustaining appellee's motion to strike stenographer's notes and dismiss the appeal and in rendering final judgment against appellant and its sureties on its appeal bond.

McRaven v. McGuire, 9 S. & M. 34; Whitaker v. Wright, 129 So. 891; Alabama Hotel Co. v. Mott Iron Works, 98 So. 825; L. & N. R. R. Co. v. Fridge-Forth, 101 So. 808; Bronson v. Shulten, 26 L.Ed. 997, 104 U.S. 410; Woodward Iron Co. v. Brown, [173 Miss. 155] 52 So. 829; Altenberg v. Grant, 83 F. 880; Mayflower Mills v. Breland, 149 So. 787; Young v. Alexander, 84 So. 697, 122 Miss. 643; Tullos v. Bd. Supervisors of Simpson County, 86 So. 358, 124 Miss. 121; Snyder v. Cox, 50 S.W. 263; Peoples Bank v. Merchants, etc., Bank, 42 S.E. 490; U.S.C. A., Title 28, secs. 230 and 344; King v. Hanson, 13 N.D. 85, 99 N.W. 1085; Brockett v. Brockett, 2 How. 238; Slaughter House cases, 19 L.Ed. 915; Texas-Pacific Ry. Co. v. Murphy, 111 U.S. 488, 28 L.Ed. 492; Memphis v. Brown, 94 U.S. 711, 24 L.Ed. 244.

Welch & Cooper, of Laurel, for appellee.

The circuit court was correct in dismissing an appeal from the county court where more than ten days elapsed between the date of the entry of the judgment on the merits and the filing of a motion for a new trial. The right of appeal having been lost by reason of the lapse of ten days it was not revived by the filing of a motion for a new trial without the ten days.

Conboy v. First National Bank, 203 U.S. 141, 51 L.Ed. 128; Credit Co. v. Arkansas C. R. Co., 128 U.S. 258, 32 L.Ed. 448; Carpenter v. Brown, 50 Iowa 451; Bellamy v. Telephone Co., 25 Okla. 792, 108 P. 389; 2 R. C. L. 108, sec. 83; Mills v. Fisher, 159 F. 987, 16 L.R.A. (N.S.) 656; 46 C. J. 301, sec. 272; Deering v. Johnson, 33 Minn. 97, 22 N.W. 174; Downs v. Bruce School District, 216 N.W. 949; Spellacy v. Hagerty Co., 182 N.Y.S. 373.

A final judgment is a judgment which terminates the litigation between the parties on the merits and leaves nothing to be done but to enforce it.

G. & S. I. R. R. Co. v. Williams, 68 So. 776, 109 Miss. 549; Dunagan v. Bank, 80 So. 276, 118 Miss. 809.

Where an applicant for insurance in filling out the application advises the agent for the insurance company [173 Miss. 156] of his numerous illnesses and is advised by the agent that it is not necessary to put all of them down and this advice is followed, the policy is not on that account avoided. Notice to the agent is notice to the company.

Hartford Ins. Co. v. Williams, 145 So. 94, 165 Miss. 233; Home Ins. Co. v. Thornhill, 144 So. 861, 165 Miss. 787.

The answers to the questions propounded in the application and whose falsity is alleged in this case show on their faces that they are not complete and the appellant is now estopped to urge the forfeiture of the policy since no inquiry was made and there was no insistence that they be made complete.

There is no presumption of fraud simply where untrue statements are made. The statement to create such a. presumption must be untrue and wilfully made.

Knowledge of the agent is knowledge of the principal. and where an applicant advises the agent of the facts and the agent advises as to the character of answers to be made and the answers are made in accord with that advice, there is no forfeiture of the policy. Who actually filled out the answers in the application is immaterial.

Mutual Reserve Assn. v. Ogletree, 25 So. 869, 77 Miss. 7.

Where the insured agrees to notify the insurer of other insurance this is not a promissory warranty and the courts will not so construe the policy unless it is clearly shown to have been so intended by both parties.

14 R. C. L. 1028, sec. 208; 32 C. J. 1280.

Where there is such an agreement it will be construed to mean insurance of like kind and covering the same risks.

Even if there be such a promissory warranty in the policy, still there is no provision in the policy providing for a forfeiture and the courts will not declare a forfeiture in the absence of such a provision.

Miss. Ins. Co. v. Dixon, 98 So. 101, 133 Miss. 507; 3 Cooley's Briefs (2. Ed.), page 2339.

Where the insured after disability fills out a claim blank after suffering a disability covered by the policy and makes an untrue statement, there is no forfeiture of the policy where such untrue statement in no sense was material to the filing of the claim. And this is true even if there be an agreement to that effect for such agreement would be wholly without consideration.

Argued orally by W. H. Watkins, Jr., for appellant, and by Ellis B. Cooper, for appellee.

OPINION

[173 Miss. 157] McGowen, J.

Dr. Cranford instituted an action at law in the county court of Jones county seeking to recover disability benefits under a...