National Life & Accident Ins. Co. v. Prather
| Decision Date | 09 April 1934 |
| Docket Number | 31136 |
| Citation | 153 So. 881,169 Miss. 898 |
| Parties | NATIONAL LIFE & ACCIDENT INS. CO. v. PRATHER |
| Court | Mississippi Supreme Court |
Where agent of insurer required to make written application and undergo physical examination to obtain employment took out disability insurance with insurer on basis of application application was in legal effect "application for insurance," and hence failure of insurer to deliver copy of application to agent with policy precluded insurer from showing in suit on policy that agent's disability was caused by disease contracted before policy was issued (Code 1930, section 5174).
APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS Judge.
Suit by J. P. Prather against the National Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Affirmed.
Cooper & Thomas, of Indianola, and Ben Wilkes, of Greenville, for appellant.
The policy of insurance provided that it only covered disabilities resulting from either bodily sickness contracted while the policy is in force, or from bodily injury effected accidentally and sustained while the policy is in force.
The insurance company pleaded and, of course, placed in issue that the disability arose from bodily sickness or bodily injury contracted or sustained before the policy was in force. The court declined to admit any testimony in support of this issue and confined all testimony to the physical condition of the plaintiff during and subsequent to the policy.
This was reversible and prejudicial error.
We do not know of any rule of law, or any statute that would prohibit the introduction of an application in evidence as was done in this case, at most the statute (section 5174, Code of 1930) simply prohibits a denial of the statements contained in said application.
The question as to whether or not appellee was disabled within the terms of the policy was a question of fact for the jury, and not a question of law for the court.
We respectfully submit that this is not a case such as is covered by section 5174 of the Code, in that the application was not an application for insurance, but was an application for a position, and the only application made for the insurance was a mere verbal notification to the cashier of the Greenville office that insurance was desired, and that for this reason testimony offered as to the date of the origin of the ailment of appellee was competent for the purpose of showing whether or not it was covered by the policy.
B. B. Allen, of Indianola, for appellee.
It is the law that even though the appellee might have had some latent defect which he did not know about at the time of the issuance of this policy, which may have arisen prior to the issuance thereof, but which developed probably as a result of a former injury, yet this fact does not bar him from recovery under the terms of the policy unless there is a warranty as to his condition, or unless there was fraud actively participated in and perpetrated upon the appellant for the purpose of procuring this insurance.
Citizens National Life Ins. Co. v. Swords, 109 Miss. 635, 68 So. 920.
All life insurance companies doing business in the state of Mississippi shall deliver to the insured with the policy, certificate or contract of insurance in any form a copy of the insured's application, and in default thereof said 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.
Insurance policies are construed more strongly against the insurer and in favor of the insured.
Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609.
This section creates a rule of substantive law which becomes a part of the contract.
Sovereign Camp W. O. W. v. Farmer, 116 Miss. 626, 77 So. 655.
One evident purpose of the statute requiring the delivery to the insured of a copy of the application is to exclude or eliminate from the contract an application, a copy of which is not delivered to the insured with the policy, and to render ineffective any defenses or attempted defenses based upon anything contained in such application.
Metropolitan Life Ins. Co. v. Scott, 134 So. 159; National Life & Accident Insurance Co. v. Williams, 146 So. 555.
Appellee instituted this suit in the circuit court of Sunflower county against the appellant, National Life & Accident Insurance Company, on an employee's disability insurance policy which was written and issued while the appellee was employed by said company as an agent. On the conclusion of the evidence in the trial in the court below, the jury was peremptorily instructed to return a verdict in favor of appellee, and from the verdict and judgment entered in pursuance of this instruction this appeal was prosecuted.
The appellant company required all...
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