Mutual Reserve Fund Life Association v. Ogletree

• Decision Date: 24 April 1899
• Court: Mississippi Supreme Court
• Parties: MUTUAL RESERVE FUND LIFE ASSOCIATION v. AMELIA J. OGLETREE

25 So. 869

77 Miss. 7

MUTUAL RESERVE FUND LIFE ASSOCIATION v. AMELIA J. OGLETREE

Supreme Court of Mississippi

April 24, 1899

March 1899

FROM the chancery court of Kemper county, HON. ADAM M. BYRD Chancellor.

Amelia J. Ogletree, appellee, was the complainant in the court below; the Mutual Reserve Life Association, the appellant and one Rosenbaum were defendants there. The bill averred that Benjamin H. Ogletree, complainant's husband, insured his life in the appellant company for her benefit; that he died after the issuance of the policy, and that proofs of his death had been made to appellant; that the policy was in the possession of the defendant, Rosenbaum, to whom it was assigned by complainant in order to secure a debt due that gentleman by complainant's deceased husband; that the defendant, Rosenbaum, and the appellant were confederating and combining to compromise the demand on the policy to the injury of the complainant. The bill sought to recover on the policy, and prayed for an accounting to ascertain the sum justly due Rosenbaum, for which he held the policy as security, and asked that a sufficient sum of the proceeds of the policy be paid to Rosenbaum to satisfy his debt, and that the balance be paid over to the complainant. The insurance company answered the bill, and set up as a defense that Benjamin H. Ogletree obtained the policy of insurance upon the faith of his answers to certain interrogatories which were propounded to him, and which answers he warranted to be true; that by the terms of the policy, if the answers were untrue, the policy itself was void; that the questions so propounded to Ogletree were these: (1) "Are you now and have you been in good health throughout the past twelve months, and free from all ailments, diseases, weakness, and infirmities?" To which the said Ogletree answered "Yes." (2) "Are you now and have you always been in good health, free from all ailments, diseases weakness, and infirmities?" To which the said Ogletree answered' "Yes." (3) "Have you ever had any ailment, local disease, weakness, or ailment of the head, throat, lungs, heart, stomach, liver, kidneys, bladder, or any disease or infirmity whatever? If so, state the nature, date. duration, and severity of the attack, and state whether fully recovered." To which the said Benjamin H. Ogletree answered: "Nothing except a slight attack of biliousness; never to the extent of calling a physician." (4) "How long since you consulted or was attended by a physician? Give date." To which the said Ogletree answered: "Not for the last thirty-five years." (5) "Give the name and address of each physician who has prescribed for or attended you within the last five years, and for what disease or ailment, and date." To which the said Ogletree answered' "None." (6) "Have you had any ailments, diseases or medical attention not stated above?" To which the said Ogletree answered: "None." The defendant averred that each and every one of the said answers to the questions aforesaid were false and untrue, and it averred that on the 7th and 12th days of June, 1896, only a short time before the policy was issued, the said Ogletree consulted a physician for a disease of the liver and heart, and the physician prescribed medicine for him on both of said days, and the answer averred that the physician constantly attended Ogletree, and he and other physicians treated him for the disease of the liver and heart until the time of his death. Testimony was taken, and there was evidence which tended to show that on the 7th of June. 1896, Ogletree was in the company of a physician at Gainsville, Ala. and the physician then discovered that Ogletree was suffering from a liver complaint and prescribed for him, and met him again on the 12th of the same month, though it is not known whether this meeting was casual or whether the physician was sent for by Ogletree; at any rate, the physician again prescribed for him on the latter date.

The witness, William Ogletree, referred to in the opinion, was a son of the insured, and he testified that he was present when his father was examined for insurance, and that he remembered distinctly that his father informed insurer again, at the end of his examination, of his consultations with the physician on the 7th and 12th of June, 1896, and told him that the physician had prescribed for him for biliousness, or liver complaint, and that the agent reduced the answers to writing with knowledge of the facts.

The decree of the court below held the appellant liable upon the policy, and ordered the full amount due on the policy to be paid into court, there to remain until the accounting could he had; and it provided that after the accounting, so much of the money as was necessary to satisfy Rosenbaum's debt should be paid to him, the balance to complainant. The defendant, the Mutual Reserve Fund Life Association, appealed to the supreme court.

Affirmed.

J. A. P. Campbell, for appellant.

The state of the case is this: The defense of false answers to questions is fully established by the evidence of the fact of Ogletree's having been prescribed for by Dr. Bickley June 7 and 12, 1896, and having continued to be diseased fatally until his death, September 3, 1897, although he was apparently well and attentive to business to the day of his death. He attached little importance to his ailment, and that accounts for his failure to state the important fact that he had been examined and treated by Dr. Bickley.

The true interpretation of § 2327 of the code is too plain for dispute among lawyers. The last clause limits its operation and can cut no figure here, though it is said to have been influential below.

On the foregoing presentation there should have been no hesitation to decree for the defendant below. The only reliance to impair this defense is the testimony of William Ogletree, which careful examination will show to be improbable and unworthy of belief on its face: and it is shown to be untrue by the testimony of Bickley, Pearson, and Mooney. The defense therefore should stand, for a solemn written instrument is not to be overthrown except by satisfactory evidence enabling the court to feel confident that it does not speak truly. The court is familiar with this rule, which applies with all its force here. I ask reversal and decree here dismissing the bill.

Cochran & Bozeman, on same side.

The vital question in this case is whether the contract made by Ogletree with the appellant is valid and binding, and whether it was competent for the appellee to prove by the oral testimony of William Ogletree that the insured made statements to his agent, Mooney, the medical examiner, when he made his application, and that Mooney did not write the statements, proven by William Ogletree, in the application.

There is nothing unfair or unreasonable in the contract, and it was perfectly competent for it to stipulate that as to the matter of writing out Ogletree's answers in the application the solicitor and the medical examiner should be the agents of Ogletree. This question has been settled by this court.

"We do not say that this company could not restrict the apparent and ostensible authority of its agent. It might be altogether fair and reasonable to write or print in the applications with which the agents were supplied, a notice that the company, in taking risks, would be governed exclusively by the surveys and answers to the written interrogatories, and not by any verbal answers given to the agent, or information imparted to him, unless written in the application." Planters' Ins. Co. v. Myers, 55 Miss. 500. Chalmers, J., in a concurring opinion...