New York Life Ins. Co. v. Rosso

• Decision Date: 13 May 1929
• Docket Number: 27817
• Citation: 154 Miss. 196,122 So. 382
• Court: Mississippi Supreme Court
• Parties: NEW YORK LIFE INS. CO. v. ROSSO

122 So. 382

154 Miss. 196

NEW YORK LIFE INS. CO. v. ROSSO

No. 27817

Supreme Court of Mississippi

May 13, 1929

Division A

1. INSURANCE. Where part of amended application was not attached to life policy, insurer could not prove statement therein as to consulting physician was false (Hemingway's Code 1927 section 5937).

Where part of amended application for life insurance, to effect that applicant had not consulted physician since first medical examination, was not attached to or indorsed on policy when delivered, insurance company was prohibited by Code 1906, section 2675 (Hemingway's Code 1927, section 5937), from proving that such statement was false, and testimony that, between time of first examination and time of amended application, insured had consulted physicians and been under their observation, was inadmissible.

2. INSURANCE. Under provision requiring delivery of policy while insured is in good, health, insured need only be in same condition as when application was made.

Provision of life insurance policy, to effect that policy shall not take effect until delivered to insured while he is in good health, is not violated, where insured was in same condition of health at time of delivery of policy as he was at time of his application therefor.

Suggestion of Error Overruled July 15, 1929.

APPEAL from circuit court of Wilkinson county.

HON. R L. CORBAN, Judge.

Action by Concitinna Rosso against the New York Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed.

A. H. Longino, of Jackson, for appellant.

Section 5837 of Hemingway's Miss. Code, does not prevent an insurance company from sustaining a plea of fraud or material false misrepresentation to procure a policy, though such statements are not disclosed by the policy or any instrument attached thereto.

New York Life Ins. Co. v. McCarthy, 22 F.2d 241; Satterfield v. Fidelity Mutual Life Ins. Co., 171 Ala. 429, 55 So. 200; Eastman v. Metropolitan Life Ins. Co., 199 N.W. 665; Empire Life Ins. Co. v. Gee, 55 So. 166.

The condition named before the taking effect of the policy in suit is a precedent condition, without the performance of which the contract, although in form executed by the parties and delivered, does not in fact go into effect.

See Everson v. General Accident Association, 202 Mass. 169, 23 L. R. A. 917; Gallant v. Met. Ins. Co., 167 Mass. 79; Frank v. Met. Life Ins. Co. , 102 N.Y. 226; Baker v. Union Mutual L. Ins. Co., 43 N.Y. 283; Beeling v. N.W. Nat. L. Ins. Co., 117 Wis. 24; Cooperative L. Ins. Ass'n v. LeFlore, 53 Miss. 1; 25 Cyc. 822.

Insurance contracts are governed by the same general rules as are applicable to other written agreements and the courts should construe them accordingly.

Insurance Co. v. Antram, 86 Miss. 224; Miss. Mutual Ins. Co. v. Ingram, 34 Miss. 215; Cooperative Life Ass'n v. LeFlore, 53 Miss. 1; American Life & Accident Ins. Co. v. Nirdlinger, 113 Miss. 74; Continental Casualty Co. v. Hale, 118 Miss. 871.

False representation made by the applicant that he had not consulted or been treated by a physician is a material representation, which will prevent recovery on the policy.

AEtna Life Ins. Co. v. Kimble, 16 F.2d 214; Cooperative Life Ass'n v. LeFlore, 53 Miss. 1; Fidelity Ins. Co. v. Miazza, 97 Miss. 18; Stipcich v. Met. Life Ins. Co., 8 F.2d 285; Stipcich v. Mutual Life Ins. Co., 72 U.S. (L. Ed.) 577.

Applicants for insurance owe the company the same good faith as they may expect and demand of the company toward themselves.

Union Indem. Co. v. Dodd, 21 F. 709; Equitable Life Ins. Co. v. McElroy, 83 F. 631; Elliott on Contracts, p. 143; Piedmont Ins. Co. v. Ewing, 92 U.S. 377; McLanham v. Union Ins. Co., 1 Peters 170; American Continental Ins. Co. v. Antram, 86 Miss. 224; Williams v. New York Life Ins. Co., 132 Miss. 345.

Jones & Stockett, of Woodville, for appellee.

Section 2675 of the Code of 1906, Hemingway's Code 5141, creates not a rule of evidence, but is a rule of substantive law for it deals not with the method of proving a fact, but with the substantive rights of both the insurer and the insured under a policy which has been delivered the insured without a copy of the application therefor attached thereto, and its provisions become a part of the contract here entered into to the same extent as if appellant had expressly agreed in its certificate not "to deny that any of the statements in said application were true."

Woodman of the World v. Farmer, 116 Miss. 626, 77 So. 655; Goodwin v. Providence, etc., Soc. (Iowa), 66 N.W. 157; Lyons v. Farm Property, etc., Co. (Iowa), 176 N.W. 291; Dixon v. Northwestern, etc., Co. (Iowa), 179 N.W. 885; Wheelock v. Ins. Co. (Minn.), 131 N.W. 1081; Stanhilber v. Ins. Co. (Wis.), 45 N.W. 221; Stillman v. Aetna Life, etc., Co. (Iowa Statute), 240 F. 462; Paulhamus v. Security, etc., Co. (Penn. Statute), 163 F. 554; Citing Nugent v. Greenfield (Mass.), 52 N.E. 440, and Dimick v. Metropolitan, etc., Co. (N. J.), 55 A. 291; National Life, etc., Co. v. Wallace (Ky.), 289 S.W. 219; Kentucky Life, etc., Co. v. Edmondson (Ky.), 292 S.W. 511; Southern, etc., Co. v. Nicholson (Tex.), 292 S.W. 569; National, etc., Co. v. Love (Tex.), 282 S.W. 829; Liverpool, etc., Co. v. Baggett (Tex.), 275 S.W. 313; Fisette v. Mutual, etc., Co. (La.), 110 So. 880; Whitmyer v. Ins. Co. (La.), 117 So. 268.

Where an application for a life insurance policy, which by its terms became a part of the contract of insurance, provides among other things, that the policy applied for shall not take effect until delivered to and received by the insured during his lifetime while in good health, and the evidence showed the insured although not in good health was in the same condition of health at the time of the delivery of the policy as he was at the time of the application therefor, the said provision in the application was not violated, because it only meant that the defendant's health had not undergone any change between the date of application for and delivery of the policy.

New York Life Ins. Co. v. Smith, 129 Miss. 544, 91 So. 456.

Argued orally by A. H. Longino, for appellant, and by A. H. Jones, for appellee.

OPINION

COOK, J.

The plaintiff, Concitinna Rosso, instituted this suit in the circuit court of Wilkinson county against the New York Life Insurance Company on a policy of insurance for ten thousand dollars, issued by said insurance company on the life of her husband, Salvatore Rosso, now deceased, and payable at his death to the plaintiff. At the conclusion of the testimony, the court peremptorily instructed the jury to return a verdict for the plaintiff for the amount named in the face of the policy; and, from the judgment entered in pursuance of this instruction, this appeal was prosecuted.

The facts necessary to be stated to develop the material issues presented by the pleadings are as follows: On September 9, 1926, Salvatore Rosso, husband of the plaintiff, made a written application to the appellant company for a policy of insurance on his life for the face amount of ten thousand dollars, payable at his death to plaintiff, and providing for annual premium payments. In this application, it was mutually agreed that the insurance applied for should not take effect unless, and until, the policy was delivered to and received by the applicant and the first premium thereon paid in full during his lifetime, and then only if the applicant had not consulted or been treated by any physician since his medical examination. Thereafter on the 17th day of September, in continuation of, and a part of, his said application, the said Rosso was examined as to his health and insurability by one of the medical examiners of the appellant company. In due course the application was approved by the appellant company, and a policy, conforming to the application, was written and forwarded to the soliciting agent for delivery to Rosso; but it was declined for the assigned reason that Rosso had changed his mind in reference to the premium payments, desiring to have the policy changed so that the premium would be payable semi-annually instead of annually. Pending negotiations, which lasted more than a month, the soliciting agent returned the policy to the home office of the appellant company, as it was his duty to do under his contract with, and instructions from, the appellant company, when a policy was not delivered within thirty days after its receipt by the agent.

Thereafter during the month of December, 1926, Rosso took steps to have the policy reissued on a semiannual premium basis, and, in furtherance of this purpose, on December 10, 1926, he signed and delivered to the agent a paper styled "Declaration by Applicant Before Delivery of New Policy," being form No. 224, which is in the following language:

"New York Life Insurance Company.

"Home Office, 346 Broadway, New York, New York.

"Declaration by Applicant before Delivery of New Policy.

"December 10, 1926.

"Policy No. 9602134 for ten thousand dollars.

"I hereby declare that since my answers to the company's medical examiner which formed Part II of my application for insurance dated September 17, 1926, I have not consulted or been treated by any physician or other practitioner; that there has been no change in my physical condition, mode of life, habits, or occupation; that I have not been examined by any other company or insurer either on or in anticipation of an application for new insurance or for the reinstatement of insurance on my life without a policy having been issued or the insurance reinstated, nor has any other company or insurer declined to issue or reinstate a policy on my life or offered to issue to me a policy different in plan or amount or premium rate from...