New York Life Ins. Co. v. Smith

• Citation: 91 So. 456,129 Miss. 544
• Decision Date: 08 May 1922
• Docket Number: 22182
• Court: United States State Supreme Court of Mississippi
• Parties: NEW YORK LIFE INS. CO. v. SMITH

91 So. 456

129 Miss. 544

NEW YORK LIFE INS. CO. v. SMITH

No. 22182

Supreme Court of Mississippi

May 8, 1922

1 INSURANCE. Statute intended to make knowledge acquired by medical examiner for life insurance company chargeable to insurer is declaratory of the common law.

If section 2615, Code 1906 (section 5078, Hemingway's Code) intended to make the knowledge acquired by the medical examiner for a life insurance company of the physical condition of the insured while making such examination imputable to the insurance company, such statute is merely declaratory of the common law, because under the common law a medical examiner for a life insurance company is the agent of the insurer in making examination of the applicant for life insurance, and taking down and recording his answers as to his condition of health, and the knowledge thus acquired by such medical examiner is the knowledge of the insurer, who is estopped from taking any advantage thereof; and it is wholly immaterial whether such medical examiner communicateed the knowledge so acquired of the assured's condition of health to the insurer.

2 INSURANCE. Insurer's placing policy in control of insured is sufficient for delivery.

In order to constitute delivery of a life insurance policy, it is not necessary that the actual manual possession of the policy be with the insured at the time of his death; it is the intention of the parties that governs, and not the manual possession of the policy; and where there is an intention on the part of the insurer to part with the control of the policy and place it in the control of the insured, or some other person acting for him, that is sufficient to constitute delivery.

3 INSURANCE. Provision that policy must be delivered to applicant "while in good health," means same condition of health as at date of application.

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 shows that 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 his 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 the application for and the delivery of the policy.

4. INSURANCE. Where first premium was paid and policy delivered to agent while insured was in same health as when applying, and insured told agent to hold policy for him, and later died, there was a delivery.

Where an application for a life insurance policy provides that the policy applied for shall not take effect until the payment of the first premium and delivery of the policy to the insured in his lifetime while in good health, and the evidence shows that the first premium was paid and the policy forwarded by the insurer to its agent for delivery, and the latter informed the insured that he had the policy for delivery, and the insured told such agent to hold it for him, that he would call for it later, and before its manual delivery to the insured the latter died, held, if at the time of receiving such notice from the insurer the insured was in the same state of health that he was when he made application for said policy, then such delivery to the agent of the insured constituted delivery to the insured; and the trial court did not err in refusing an instruction which sought to inform the jury that the insurer's agent could not, without the latter's consent, act as the agent of both the insurer and the insured in making delivery of the policy, such instruction being inapplicable to the case.

HON. R. S. HALL, Judge.

APPEAL from circuit court of Perry county, HON. R. S. HALL, Judge.

Action by Susie B. Smith, as administratrix of the estate of her deceased husband, J. B. Smith, against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

A. H. Longino, for appellant.

Stevens & Heidelberg, for appellee.

OPINION

ANDERSON, J.

Appellee, Mrs. Susie B. Smith, as administratrix of the estate of her deceased husband, J. B. Smith, sued the appellant, the New York Life Insurance Company, in the circuit court of Perry county, on a life insurance policy issued by the appellant to said decedent during his lifetime, payable to his estate, and recovered judgment for the face amount of said policy, with interest and costs, from which judgment appellant prosecutes this appeal.

Appellant defended the suit on the ground that the policy in question had not taken effect at the death of the insured, because, as provided in the contract of insurance, he had not paid the first premium thereon, and it had not been delivered to and received by him while living and in good health, and on the further ground that said contract was void because it was procured by false and fraudulent representations made by the insured to the appellant in his application therefor, in this, that he represented in his said application that he was at the time of the making thereof in good health, and was not suffering from any ailment of the kidneys, bladder, or other internal organs, when in truth and in fact he was at that time, and knew the fact himself, suffering with internal cancer or other serious disease of the internal organs, and that, on the faith of which representations so falsely and fraudulently made, appellant issued the policy in question. The policy was applied for on the 14th of April, 1917, and was issued on the 20th of April, 1917, and the insured died on the 22d of June of the same year. Insured's application contains a stipulation that all his answers therein are material to the risk; but the policy issued thereon expressly provides in the following language that all statements made by the insured in his application, in the absence of fraud, shall be treated as representations, and not warranties:

"The policy and the application therefor, copy of which is attached hereto, constitute the entire contract. All statements made by the insured shall, in absence, of fraud, be deemed representations and not warranties, and no such statement shall avoid the policy or be used in defense to a claim under it, unless it be contained in the written application and a copy of the application is indorsed upon or attached to this policy when issued."

We will consider first the assignments of error which depend on the question of law, whether the knowledge acquired by a medical examiner for a life insurance company in the examination of an insured for the purpose of ascertaining his condition of health is imputable to the insurance company. The question arose in the present case in this manner. Appellant gave notice under the general issue that it would prove by way of defense that the policy in question was procured through the fraud of the insured, as stated above. At the term of the court at which the cause was tried, and just before entering upon the trial, appellee filed a replication to this notice, in which she averred that, if it were true, as set up in said notice, that the insured was suffering from some serious internal disease at the time of making his application, Dr. Mounger appellant's medical examiner, who examined the insured and wrote down his answers to the questions propounded to him touching his condition of health, knew of such disease, and that such knowledge was imputable to the appellant. Thereupon appellant moved the court to strike from the files such averment contained in appellant's said replication, which motion was by the court overruled. Appellant then moved the court for a continuance of the cause on the ground of surprise, on account of the matter so set up in the replication, in order that appellant might prepare its defense thereto, which motion for a continuance the court overruled. On the trial appellant's medical examiner, Dr. Mounger, who examined the insured and wrote down his answers as to the condition of his health, testified on behalf of appellee that, notwithstanding his report of said medical examination which he turned over to appellant's soliciting agent, D. B. Holmes, through whom said application for insurance was made, showed that he found said insured free from any disease of the internal organs; that in truth and fact he found on such examination that there was a slight trace of albumen in the urine of the said insured, and some inflammation of his liver (which condition he said did not necessarily mean ...