National Life & Accident Ins. Co. v. Prather

• Citation: 161 So. 117,172 Miss. 567
• Decision Date: 06 May 1935
• Docket Number: 31710
• Parties: NATIONAL LIFE & ACCIDENT INS. CO. v. PRATHER
• Court: United States State Supreme Court of Mississippi

161 So. 117

172 Miss. 567

NATIONAL LIFE & ACCIDENT INS. CO. v. PRATHER

No. 31710

Supreme Court of Mississippi

May 6, 1935

Division B

1 JUDGMENT.

Insurer not pleading statements in insured's application for employment, which was not made part of policy issued to its employees, as defense to his suit for total disability benefits, cannot avail itself of such statements to avoid effect of decision therein, upholding validity of policy and insurer's right to recover, in latter's subsequent suit to recover for disability after filing of former suit

2 JUDMENT.

Judgment in former suit is conclusive, not only as to matters actually pleaded, but as to all matters which could have been set up, therein.

HON, J. L. WILLIAMS, Chancellor.

APPEAL from the chancery court of Sunflower county, HON. J. L. WILLIAMS, Chancellor.

Suit by J. P. Prather against the National Life & Accident Insurance Company and others. Judgment for plaintiff, and named defendant appeals. Affirmed.

Affirmed.

Ben Wilkes, of Greenville, and Cooper & Thomas, of Indianola, for appellant.

If there was any evidence in this record to show that any written application was made for this policy, appellee might have something upon which to base his contention, but there is not a word of evidence in this record to show that any written application was made for the policy.

Where there is no written application, the statute does not prevent the insurer from showing that the oral representations were false.

2 Cooley's Briefs on Insurance, page 1095; Lenox v. Insurance Company, 30 A. 940.

When any party seeks to invoke a statute he must show that he comes within the terms of the statute. Certainly if there was no written application our evidence was competent and I do not think the lower court had the right to presume the existence of a written application when the record is absolutely silent in this regard.

Since the insurance company denied that the disabilities arose while the policy was in force, any evidence offered by either side, tending to prove or disprove when the disabilities arose or that the same arose while the policy was in force, is competent and should have been admitted.

153 So. 881, 160 Miss. 537.

The complainant must certainly prove that his claim comes within the terms of the policy and certainly any evidence that his claim does not come within the terms of the policy is competent.

We find that the question presented in this appeal was definitely and conclusively decided in favor of this appellant in the case of Metropolitan Life Ins. Co. v. Scott, 160 Miss. 537, 134 So. 169.

If the application be not attached in obedience to the statute, the policy should be treated, construed, and enforced as if no written application had been made.

Rauen v. Prudential Ins. Co., 129 Iowa 725, 106 N.W. 198; Kirkpatrick v. London Guarantee & Accident Ins. Co., 115 N.W. 1107, 19 L.R.A. (N.S.) 102.

Allen & Allen, of Indianola, for appellee.

When this case came on for hearing in the court below, the same evidence was introduced as in the previous case, National Life & Accident Ins. Co. v. Prather, 153 So. 881, and in addition thereto evidence was introduced to show beyond question that the condition of the appellee continued for the remainder of the twenty-four months. So that this court on this appeal has before it the identical case with this addition as was before this court a year ago when it rendered the opinion in that case. The same arguments were made in that case as are now made in this case.

This case should be affirmed.

We are quite familiar with the doctrine of the case of the Metropolitan Life Insurance Company v. Scott, 134 So. 159, to the effect that where the matters ordinarily set out in the application are embraced in the face of the policy that the insurance company may show the breach of the conditions contained in the face of the policy. There is nothing in the face of the policy here sued on to show any breach of a condition in the face of this policy. And even though it were true that the appellee while a member of the United States Army during the World War, suffered a disability similar to the one now suffered by him, yet at the time he took out the insurance in this case he thought he was free of this ailment and did nothing to mislead the appellant, he may, nevertheless, recover.

Citizens National Life Ins. Co. v. Swords, 109 Miss. 635, 68 So. 920; National Life & Accident Ins. Co. v. Williams, 146 So. 555.

OPINION

Ethridge, P. J.

J. P Prather brought suit in the chancery court of Sunflower county against the National Life & Accident Insurance Company for a disability under a policy of insurance issued by said company to its employees, upon an application for employment under which, if the applicant passed the physical examination, he could procure the insurance. Under the terms of the policy, appellee was entitled to twenty-five dollars per week for a total disability, and he alleged in his bill that he became totally disabled during the life of the policy, and that he was paid, at one time, one hundred twenty-five dollars; that he undertook to go back to work after that, but during the first week in August, 1931, he again became sick and disabled, never having...