Sovereign Camp, W. O. W. v. Prince
| Decision Date | 04 January 1926 |
| Docket Number | 25191 |
| Citation | 141 Miss. 381,106 So. 521 |
| Court | Mississippi Supreme Court |
| Parties | SOVEREIGN CAMP, W. O. W. v. PRINCE. [*] |
(Division A.).
INSURANCE. Warranties in application held not waived because application was made out by insurer's physician.
Where application for fraternal insurance warranted answers whether written by applicant or not, false warranty that he had not had diseases, or been attended by a doctor, was not waived because insurer's physician made out the application; it not appearing that the physician was advised as to true facts, or that insured did not fully understand the answers as written.
APPEAL from circuit court of Scott county, HON. G. E. WILSON, Judge.
Action by Killis Prince against the Sovereign Camp, Woodmen of the World. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.
Reversed, and judgment here.
Watkins, Watkins & Eager, for appellant.
The directed verdict requested in the instruction of the appellant should have been granted by the lower court for the reason that the appellee had failed to reveal information in respect to his physical condition and diseases and symptons which he had theretofore had and were material to the risk, and under the terms of the application and the beneficiary certificate, his policy thereafter became void at the option of the appellant. Fidelity Mutual Life Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817; Hoke v. Insurance Co., 103 Miss. 275, 60 So. 218.
By the provisions of the application and just above the signature of the appellee appears the following language: "I, the undersigned applicant, declare that I have read the above questions and answers, and for the purpose of this application I declare and warrant that the answers recorded to the above and foregoing questions are full, complete, true and correct." His testimony shows that he was not mislead or fraudulently induced to sign the application, and he, himself, sets forth in his plea that he had the opportunity to read it but did not do so. It is thus seen that the appellee warrantied the truth of his answers. His statements were not merely representations but warranties in the strict legal sense. See Citizens Nat'l Life Assurance Co. v. Swords, 109 Miss. 636, 68, So. 920. In this case, a verdict for the assured was affirmed because, as is specifically set out in the opinion, the contract of insurance expressly provided that "all statements made by the insured shall in the absence of fraud be deemed representations and not warranties." In the case at bar just the opposite provision appears, the answers of the applicant being made warranties by the terms of the contract; and we submit, as held in the case last cited, that as the evidence conclusively showed certain answers of the appellee to be untrue, the warranty was breached and the directed verdict should have been accordingly given for the appellant in the lower court. See also, Sovereign Camp Woodmen of the World v. Sloan, 136 Miss. 557, 101 So. 195.
Dr. Cloud says if the real facts had been before him the application would have been rejected. No one can be blamed for this state of facts except the appellee himself. He states in his counter-notice and plea that he was requested to sign the same by Dr. A. L. Monroe and he did sign it without reading it himself or without having it read to him. His failure to read that which he had ample opportunty to read cannot now be placed upon this appellant. He was not fraudulently induced to sign the application but neglected to read what he was signing. The appellant had the right to assume that his answers were correct and he an intelligent man, was bound to know and should have known that he was signing an application for insurance and wherein he had given certain information in respect to his personal history. We therefore, submit that he has breached these warranties of his application, and under the four Mississippi cases cited, he cannot now recover upon the certificate. See, too, Columbian Mutual Life Assurance Co. v. Herrington et al., 104 So. 297; Union Mutual Aid Ass'n. v. Carroway (Ala.), 78 So. 792; 14 R. C. L. 1073, par. 252; Eminent Household of Columbian Woodmen v. Prater (Okla.), 103 P. 558; Smith v. Aetna Life Ins. Co., 49 N.Y. 215; Geach, v. Ingal, 14 Mass. W. 95; March v. Metropolitan Life Ins. Co., 186 Pa. 629, 65 Am. St. Rep. 887, 40 A. 1100; White v. Providence Saving Life Assurance Society (Mass.), 27 L. R. A. 400; 14 R. C. L., page 1069, par. 248.
A statement that insured had never had a cancer is a statement material to the risk, and its falsity a good defense to the policy. Brisou v. Metropolitan Life Ins. Co., 115 S.W. 785. Where, in an application for life insurance, assured expressly warrants the truth of the answers made to the medical examiner and it is stipulated that the policy shall be avoided if any answer be untrue, the contract is the law of the case, under Acts of 1906, page 86, No. 52, and the policy is forfeited, where it is proved that the assured answered untruly that she had never had a chronic or persistent cough. Bertrand v. Franklin Life Ins. Co. of Illinois, 44 So. 186, 119 La. 423. See, also, Hoffman v. Metropolitan Life Ins. Co., 131 N.Y.S. 588, 147 A.D. 893; Alexander v. Metropolitan Life Ins. Co., 64 S.E. 432, 150 N.C. 536; Harris v. Security Mut. Life Ins. Co., 170 S.W. 474, 139 Tenn. 325, L. R. A. 1915-C 153, Ann. Case 1916-B 380; Talley v. Metropolitan Life Ins. Co., 69 S.E. 936, 111 Va. 778; Smith v. Bankers' Life Ass'n., 157 Ill.App. 236; Mutual Life Ins. Co. v. Robinson, 80 A. 1085, 115 Md. 408.
Even admitting for the sake of argument, that Dr. Monroe did presume to fill in the answers to the questions, he could not have bound appellant or committed a waiver in respect to those things to which he had no knowledge. As we understand it, the fact that Dr. Monroe was the Camp medical examiner and filled out the questions in the application in the absence of fraud or misrepresentation does not prevent the appellant from making the defense here interposed. Mr. Prince had ample opportunity, if he had so desired, to read the application which he signed, and which for reasons of his own he did not do.
Eastland & Mize and E. O. Sykes, for appellee.
The only question argued is that the court erred in not granting the peremptory instruction requested by appellant. It is claimed that the answers of the appellee to the questions relating to his personal history are warranties. The argument boils down to the fact of his spitting up blood a few times, and perhaps also once upon a time Doctor Moody made him one visit when he says he had the "flu." The argument in this case for the appellee can be made very short. The entire answer to the argument of counsel for appellant is that we made no warranties and no representations, whatsoever. Their agent, Dr. Monroe, who was also the family physician of this appellee took upon himself to answer all of these questions, and whether or not he answered them correctly is no concern of ours. In doing this he was acting as the agent of the appellant company and they are bound by his action. They cannot claim that these answers are untrue. The testimony of the appellee shows that he answered truthfully every question propounded him by Dr. Monroe and this is really an end of the controversy.
The constitution of the appellant company, the printed directions in the application blank and the policy itself contemplate and provide that the physician can record these answers for the applicant. In fact, it is made the duty, by this application blank, of the physician to explain the meaning of the terms of this personal history. The court will note that a number of these terms are technical medical expressions which the average man will not understand. In this particular case this appellee is a common laborer. He testifies that he answered truthfully all questions propounded him by Dr. Monroe. Dr. Monroe was not put upon the stand by the appellant to contradict the testimony of the appellee, but rather the appellant relied upon Dr. Monroe's proof of loss, which of course is contradictory both of his examination of appellee and also of the testimony of the appellee in this case. In passing however, though it is not of importance in this case, I must differ with counsel that these answers under personal history are warranties.
We have no quarrel with the authorities from this state cited in the brief of appellant. We submit that the case of Fraternal Aid Union v. Whitehead, 87 So. 454, 125 Miss. 153, is very much in point. The case of Fidelity & Casualty Co. of N. Y. v. Cross, 95 So. 631, 131 Miss. 632, is more directly in point and is really decisive of the case. The rule is also well stated in syllabus No. 2 of Pudretzky v. K. of L. Lodge, 76 Mich. 428. Again section 5078, Hemingway's Code, (section 215, Code of 1906) makes the physician in this instance the agent of the appellant company.
Watkins, Watkins & Eager, in reply, for appellant.
Chief reliance for an affirmance of this case rests upon the theory that Dr. Monroe, the examining physician, was the agent and representative of the appellant and that the company cannot now be heard to set up by way of defense any answers written in the application which were, and are, untrue. This position would be well taken if the appellee had further shown by testimony that full disclosures were made to Dr. Monroe as to appellee's present and past physical condition and diseases, and Dr. Monroe had then assumed to construe such information and frame the answers which appear in the application. This, we understand, is the principle applied in Fidelity Mutual Life Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817, ...
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