Penn Mut. Life Ins. Co. v. Nunnery

• Decision Date: 13 April 1936
• Docket Number: 31967
• Citation: 167 So. 416,176 Miss. 197
• Court: Mississippi Supreme Court
• Parties: PENN MUT. LIFE INS. Co. v. NUNNERY

167 So. 416

176 Miss. 197

PENN MUT. LIFE INS. Co. v. NUNNERY

No. 31967

Supreme Court of Mississippi

April 13, 1936

Division A

1. INSURANCE. That insured was drunk once would not indicate that he "used" intoxicating liquor to excess.

The word "used" in this connection means "to make use of, especially habitually or customarily for a regular custom; to practice or make a practice of."

2 INSURANCE.

False representation by insurer's representative inducing beneficiary of life policy to execute release, and on which representation beneficiary was justified in relying, would make release ineffective to bind beneficiary, regardless of good faith in making representation.

3 FRAUD.

Misrepresentation of domestic law, being merely expression of opinion, does not ordinarily constitute predicate for fraud, unless accompanied by inequitable conduct inducing another to rely and act thereon.

4 FRAUD.

Misrepresentation of domestic law made by one who has or professes to have knowledge of law superior to that of one to whom misrepresentation is made, thereby inducing such person to rely and act on misrepresentation, is basis for relief on ground of fraud.

5 INSURANCE.

Evidence that release executed by beneficiary of life policy was induced by false representation of adjuster that no recovery could be had on policy on ground of false answer in application that insured did not drink intoxicants to excess held to present jury question, as against contention that misrepresentation was one of law.

6. INSURANCE.

In action on life policy, evidence held to present jury issue whether beneficiary killed insured in necessary self-defense, as against claim that insured was murdered by beneficiary.

7. INSURANCE. Whether insured drank intoxicating liquors "to excess" held for jury as respects right to recover on life policy.

The words "to excess" in this connection are equivalent to "excessively" or "intemperately."

8. INSURANCE. If beneficiary killed insured in self-defense against insured's unprovoked attack with deadly weapon, death was not "accidental" within double indemnity clause of life policy.

Double indemnity clause of the policy provided for payment of double amount of face of policy in case of death resulting solely from bodily injuries effected directly and exclusively by external, violent, and accidental means, and that such double indemnity benefit should not be payable if death resulted directly or indirectly from commission of a felony.

9. INSURANCE

If insured did not assault beneficiary of life policy, and gave her no reason to believe her life was in danger, or that she was in great bodily harm, beneficiary in killing insured would be guilty of murder, and could not recover under double indemnity clause of life policy.

10. INSURANCE.

Where, under evidence, jury could have found only that insured's death was not accidental, or that he was murdered by beneficiary, insurer's request for directed verdict, as respects right to recover under double indemnity clause of life policy, should have been granted.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Washington county HON. S. F. Davis, Judge.

Action by Adele Nunnery against the Penn Mutual Life Insurance Company. Judgment for plaintiff, and the defendant appeals. Reversed in part and rendered.

Reversed and judgment here for appellee.

Percy & Farish, of Greenville, for appellant.

A peremptory instruction in favor of the defendant should have been granted because the plaintiff signed the release for a good and valuable consideration and this release was not procured by fraud, and because the insured had made a material misrepresentation of fact as to his drinking in his application for insurance and the insurance would not have been issued had he truthfully answered the questions as to his excessive drinking.

A. & V. Ry. v. Kropp, 129 Miss. 616; Pilot Life Ins. Co. v. Wade, 153 Miss. 874; Rowe v. Fair, 157 Miss. 326; Insurance Co. v. Elmore, 111 Miss. 137.

We have found no Mississippi case deciding the question of whether questions and answers concerning excessive drinking in a life insurance policy are material to the risk; but there are many cases holding that questions and answers as to the previous health of the insured are material to the risk.

Williams v. New York Life, 132 Miss. 345; Hope v. Insurance Co., 103 Miss. 269.

Our own court has recently expressed its wish for its decisions to be consonant with those of the federal court, particularly our own Fifth Circuit. That circuit has decided recently that false representations of an answer as to use of alcoholic liquors are material to the risk and sufficient to warrant the cancellation of the policy.

Phillips-Morefield v. Life Ins. Co., 66 F.2d 29; Union Indemnity v. Dodd, 21 F.2d 709; Jeffries v. Economical Mut. Life, 22 L.Ed. 833.

We have found no case holding that a representation as to excessive use of liquor was not a representation as to material fact. When is an answer material to a risk is a question for the court and not for the jury unless the facts are in dispute.

Volunteer State Life v. Richardson, 26 A. L. R. 1270; Aetna Life v. Davey, 31 L.Ed. 315.

Misstatements of the applicant as to the use of stimulants, even though such representations are not made warranties they are material to the risk, and substantial falsity therein avoids the policy.

37 C. J. 453.

We submit the insured's answer was false and materially affected the risk under the policy and therefore the policy is void as the company's agent stated to plaintiff, Mrs. Nunnery, and no recovery can be had under it and a peremptory instruction in favor of the defendant should have been granted on this ground.

Double indemnity under the terms of the policy is not recoverable in this case because the death of the insured resulted directly or indirectly from committing a felony.

We claim he was guilty of assault and attempt to kill. Appellee claims it was for the jury to say what his intent was. We rejoin that there was no evidence on which the jury could base a finding of non-felonious intent. The mere pointing of the pistol is prima facie evidence of intent to kill.

Jeff v. State, 37 Miss. 321; 26 Century Digest, sec. 263; 10 Dec. Digest 1906, sec. 257; 12 2nd Dec. Digest, sec. 145; Lanier v. State, 57 Miss. 102.

Double indemnity cannot be recovered in this case because the death here was not caused by accidental means.

Meister v. General Accident Co., 179 P. 913, 4 A. L. R. 718; Georgia Casualty v. Mills, 73 A. L. R. 408, 156 Miss. 853; Mutual Life v. Sargent, 51 F.2d 4; Occidental Life Co. v. Holcomb, 10 F.2d 125; 37 C. J. 576, sec. 341; Lavender v. Life Ins. Co., 171 Miss. 169.

In Griffith's Chancery Practice the general rule is expressed that fraud must be charged in terms of "fact and must be proven by the facts and the proof must be clear and convincing." The allegations must be specific and the proof must be greater than a preponderance of the evidence.

Griffith's Chancery Practice, sec. 589; Willoughby v. Pope, 101 Miss. 812.

We have searched the authorities to find whether the adjuster's statement that the second policy as well as the first policy was void because of a false misrepresentation in the application to the first policy, which was also material to the risk in the second policy, was accurate as a question of law. We have found no case in any court which has raised the precise point. But we have found a reference to two cases, the text of which we have been unable to see, which tends to support the adjuster's theory.

27 A. L. R. 964; Lanigan v. Prudential Ins. Co., 63 Hun. 408, 18 N.Y.S. 287; Emlaw v. Travelers' Ins. Co., 108 Mich. 554, 66 N.W. 469.

Apparently these cases hold that an insurance company is charged with knowledge of the existence and terms of a policy it has previously issued to the insured and cannot plead as a defense to a second policy issued by it to the same insured a statement that the insured had no other insurance in that company. The statement of the insured in the second policy was untrue, but the court held that it did not deceive the insurer because the insurer, having already issued a policy to the insured, knew that his statement was untrue. In other words, the insurance company is charged with knowledge of the first policy. Is not the converse equally logical that the insured himself is charged with the knowledge of the existence and terms of the first policy? The adjuster's judgment that the second policy was void because of false information given in the first policy, which continued to be false at the time the second policy was issued, seems to us a sound judgment; certainly it is a judgment reasonable in itself, honest and one not controverted by any authority we have been able to find. If an insurance company is estopped from denying knowledge gained by a first policy in defending a second policy, it should be allowed to use knowledge gained from a first policy in defending a second policy.

Ramsey Rusell and Wynn, Haftr & Lake, all of Greenville, for appellee.

In the present suit, the issue of whether or not the release was a valid, legal release was submitted to the jury under proper instruction; and the jury, by its verdict, held that it was not valid or binding on the appellee. One cannot read the evidence in this record without being entirely convinced that the jury reached the only possible verdict in this case. We state that the findings of this jury should not be reversed.

Davis v. Ellzey, 88 So. 630, 126, Miss. 789; Kansas City M. &amp B. R. R. Co. v. Chiles, 38 So. 498, 86 Miss. 361; Huff, et al. v. Bear Creek Mill, 77 So. 306, 116 Miss. 599; 12 R. C. L. 444; A. & V. R. R. Co. v. Jones, 19 So. 105, ...