Sovereign Camp, W. O. W. v. Sloan

• Decision Date: 16 June 1924
• Docket Number: 24195
• Court: Mississippi Supreme Court
• Parties: SOVEREIGN CAMP, W. O. W., v. SLOAN. [*]

101 So. 195

136 Miss. 549

SOVEREIGN CAMP, W. O. W., v. SLOAN. ^[*]

No. 24195

Supreme Court of Mississippi

June 16, 1924

Division A

Suggestion of Error Overruled Aug. 28, 1924.

APPEAL from circuit court of Lowndes county, HON. THOS. B. CARROLL Judge.

Action by Mrs. Mollie Sloan against Sovereign Camp, Woodmen of the World. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

See also, 99 So. 568.

Reversed and remanded.

John F. Frierson, for appellant.

The contention of the appellant is that on this state of facts and on the evidence in the case, the peremptory instruction which was asked for by the defendant should have been allowed. The court erred further in granting instructions for the defendant, which will be discussed later, and in refusing and modifying instructions asked by the defendant. We think the theory upon which the court permitted the cause to go to the jury was erroneous. First, because the answers in the application were made warranties; second, because the jury was wholly incompetent to say what disease or injury would tend to shorten life; third, because the condition of hardening of the arteries or arterio-sclerosis is a well known physical condition that undoubtedly does tend to shorten life and that stout men particularly who are approaching middle life are always anxious about it, and the court should have taken judicial notice of it; fourth, because the evidence undoubtedly shows that the insured was suffering from a physical condition that did actually cause his death within one year after the application was given, and which condition he knew or had reason to know, and kept hid by his answers; fifth, because the insured knew or had every reason to know of this physical condition from December, 1920, the date of the examination for life insurance by Dr. C. E. Lehmberg and also knowing this he placed himself under the care of Dr. Lehmberg and was constantly under his directions and care during the year 1921, prior to the application for insurance. The entire contract makes these answers warranties. It was so stated in the insurance policy itself, in the application and in the Constitution and Laws. The Co-operative Life Association of Mississippi v. Leflore, 53 Miss. 1.

Nothing is better settled, both in regard to insurance contracts and contracts of all sorts, than that an untrue statement by either party as to a matter vital to the agreement, will avoid it, though there be no intentional fraud in the misrepresentation. Bliss on Insurance, 52; May on Insurance, 181, 182; Fidelity Mutual Life Insurance Co. v. Miazza, 93 Miss. 18, 46 So. 817; 18 C. J. 1138; 5 C. J. 589; Continental Casualty Co. v. Semple, (Ky.) 112 S.W. 1122, 1124; Fidelity Mutual Association in Philadelphia v. McDaniel, 57 N.E. 645; White v. Providence Savings Life Insurance Society, 27 L. R. A. 398. The case at bar falls within the principles announced in Hoke v. National Life and Accident Insurance Co., 103 Miss. 269, 60 So. 218. See, also, Williams v. New York Life Insurance Co., 96 So. 97.

So, we respectfully submit, that there was no disclosure of a fact material to the risk; but there was a concealing of this fact that was material to the risk. The insurance companies have good and sufficient reason for seeking such information. It will probably be argued that the court left it for the jury to say whether this was concealment of a treatment of a disease "tending to shorten life." It was not the province of the jury to say what would "tend to shorten life," or what would increase the hazard of the risk. The insurance companies have their medical examiners for that purpose.

In Aetna Life Insurance Co. v. France, 23 U. S. (L. Ed.) 401, the court held in reference to the questions and answers in the application which were made warranties by the terms of the contract, that the "materiality of such statements is removed from the consideration of a court or jury by the agreement of the parties that such statements are absolutely true and that if untrue in any respect that policy shall be void." The case of Hubbard v. Matual Reserve Fund and Life Association, 100 F. 722, 40 C. C. A. 665, holds the answer that appellant had not consulted a physician since childhood is breach of warranty when he had been treated within five years previous to application. See Griffith v. Mutual Life Insurance Co., 36 App. (D. C.) 15, refusing to allow recovery where assured suppressed the fact that he had been attended by a physician; Rodier v. Insurance Co., 32 App. D. C. 167, upholding directed verdict of lower court in favor of insurance company, where evidence showed falsity in insured's reports; Nelson v. Nederland, etc., Life Insurance Co., 110 Iowa 602, 81 N.W. 807, holding false statement that applicant's health was good and that he had no occasion to consult physician, avoids policy; Tobin v. Modern Woodmen of America, 855 N.W. 472, holding where insurance certificate makes truth of insured's statement in application that he is at the time in good health essential to validity of certificate, it is error to permit jury to excuse breach of such warranty on theory that false statement worked no prejudice.

A material false representation is a ground for the avoidance of a life insurance policy the same as any other contract. Ebner v. Ohio State Life Insurance Co., 121 N.E. 315; 14 R. C. L. 1021; 14 R. C. L. 1022; Helwig v. Mutual Life Insurance Co., 28 A. S. R. 578.

We submit further that it was the duty of the court to take judicial notice of the fact that arterio-sclerosis was a disease. 23 C. J. 146, Life, Health and Faculties; 15 R. C. L. 1130. We respectfully submit that the peremptory instruction for the plaintiff should have been granted.

The second instruction given plaintiff is clearly erroneous. It is positively and directly contradictory to the words which the parties solemnly set out in their contract and the contract of insurance agreed upon and determined by and between the parties; there was further said above that the disease "was temporary in its nature and did not tend to undermine and weaken the constitution." The court has no right or authority to vary the terms of a written instrument in any such manner. The parties were over the age of twenty-one and supposed to be in their right minds and had the authority to contract as they saw fit. If the insurance company had wanted those words in the application they would have placed them there. If the insured had asked for the writing of those terms into the question they would not have been placed there.

Owen & Garnett, for appellee.

Instead of Sloan having perpetrated a fraud on appellant, we submit that the appellant perpetrated a fraud on Sloan; because it required the examining physician to interrogate him about fifty or sixty specific diseases, but not a word as to blood pressure, so that its own examining physician didn't consider that a blood test was required; and then, when the man was dead, appellant raises the point about blood pressure.

Appellant, in arguing that it was entitled to a peremptory instruction, relies on the Leflore case, 53 Miss. 1, and the Miazza case, 93 Miss. 18, 46 So. 817. In the Miazza case the court's comments on the Leflore case, which was decided in 1876, show clearly that the court had no intention of being bound by the principles laid down in the Leflore case. In the Miazza case Justice MAYES, referring to the Leflore case used some pertinent language which fraternal insurance orders would do well to remember.

Despite appellant's vociferous assurance that Sloan, at the time he made the application for a policy, had been recently treated for arterio-sclerosis, high blood pressure, and other things, we deny that there was any misrepresentation. We submit that neither Dr. Lehmberg nor Dr. Brewer ever told Sloan that he had hardening of the arteries, or that either ever found anything more than high blood pressure, which all three of the physicians said was not a disease, but a symptom which might vary from day to day and yield to dieting and regular habits. Appellant cites 18 C. J. 1138 for a definition of disease. That definition is not the accepted definition in the law of insurance. See "Life Insurance," 25 Cyc. 810-816. Another case cited under appellant's definition of "disease" as taken from 18 C. J. 1138, is Meyer v. Fidelity & Casualty Co., 65 N.W. 328, where the supreme court of Iowa was careful to distinguish between "disease" and a "temporary disorder."

The instruction given by the court below is in harmony with our views, and clearly makes the distinction which we think ought to be preserved between mere temporary disorders and those functional disturbances which are ordinarily denominated "disease" or "bodily infirmities." Our position has strong support in the case of Manufacturers Indemnity Co. v. Dargon, 58 F. 945, from the United States circuit court of appeals for the sixth circuit; TAFT, J., writing the opinion. This authority is clearly in point and was evidently followed by the learned district judge in preparing his instructions in this case. See, too, Continental Life Ins. Co. v. Young, 113 Ind. 159; Cady v. Fidelity & Casualty Co., 113 N.W. 967, (Wis.); Hogan v. Mut. Ins. Co., 41 N.E. 663 (Mass.); Logan v. Prov. Saving Life Assur. Soc. of N. Y., 50 S.E. 529 (W. Va.); Des Moines Life Ins. Co. v. Clay, 116 S.W. 232 (Ark.); Corbett v. Mut. Life Ins. Co., 55 N.Y.S. 775.

The definitions of arterio-sclerosis, set out in appellant's brief, do not interest us because we deny that Sloan had arterio-sclerosis or that any physician said he had it.

The exact language of the question is as follows: "Have you consulted or been attended by a physician for any disease or injury during the past...