Tisdale v. Jefferson Standard Life Ins. Co., 42472

• Decision Date: 03 December 1962
• Docket Number: No. 42472,42472
• Parties: George Washington TISDALE v. JEFFERSON STANDARD LIFE INSURANCE COMPANY.
• Court: Mississippi Supreme Court

Page 122

147 So.2d 122

244 Miss. 839

George Washington TISDALE v. JEFFERSON STANDARD LIFE INSURANCE COMPANY.

No. 42472.

Supreme Court of Mississippi.

Dec. 3, 1962.

Melvin, Melvin & Melvin, Laurel, for appellant.

Welch, Gibbes & Graves, Laurel, for appellee.

LEE, Presiding Justice.

George Washington Tisdale sued Jefferson Standard Life Insurance Company in the County Court of Jones County to recover total disability benefits under a policy, which he held with the Company and which provided for payment of such benefits in case the disability should 'occur before the anniversary of the policy on which his age at next birthday is sixty years.' Copies of the application and the policy were attached. The application, dated June 17, 1922, stated that he was born on December 19, 1897. The policy, a limited payment endowment form, bore the same date as the application and listed the policyholder's age at twenty-four years. Judgment in the sum of $775, for accrued monthly payments, was demanded.

The answer of the defendant denied that the plaintiff sustained his disability before reaching his sixtieth birthday.

Simply stated, the issue centered about the respective versions as follows: The plaintiff maintained that he was born on December 19, 1897; that he sustained his disability, beginning in May 1958, at which time his age was nearer sixty than sixty-one; that he had paid all premiums which were due; and that he was entitled to recover.

The defendant conceded that, if December 19, 1897, was the date on which the plaintiff was born, his contention might well prevail. But, on the contrary, it maintained that the plaintiff was born on December 19, 1895, and that he was in fact sixty-one years and older at the time of the occurrence of his disability; that December 19, 1897, was a misstatement as to the date of birth, not invalidating the other provisions of the policy, but simply cutting off the right to disability benefits upon the occurrence of the specified age limitation; and that the plaintiff was not, therefore, entitled to recover for such benefits.

Tisdale testified that he was born on December 19, 1897; that when the agent of the Company solicited the insurance from him, the information was also taken from his father's Bible. (Objection was made to any information about the Bible unless it was produced, but the court reserved its ruling.) He thought that he had two children at the time he made this application. On cross-examination, he did not know the age of an older brother or when he died. Neither did he know the age of his parents or when they died or how long ago their deaths occurred. He did not remember the years of birth or the several ages of his son and two daughters. He said that he was unable to remember dates since he had his stroke. He admitted that he registered for the draft in World War I, but, when shown a photographic copy of his alleged registration card, he did not think it looked like his signature although he was engaged in the same occupation and lived in the same community as that of the registrant in that document. He admitted that he had registered to vote and had voted in the various elections; and, although a man with the same name had registered in the same precinct at least twice, with the age coinciding in each instance, he did not admit that he was the same person. Neither did he commit himself on whether he had in 1956 received an exemption from the payment of poll taxes because he was over sixty years of age.

Chester F. Edwards, the insurance agent who solicited the insurance, testified at length. On a reserve ruling by the court, he was permitted to testify about what he had seen in the Bible, which he could remember very little about. However, he said that Tisdale told him that he was born in 1897 and that he was twenty-four years old. He admitted, on cross-examination, that he did not know how old Tisdale was; and that, if Tisdale told him his correct age, the application was correct; on the other hand, if Tisdale's information was incorrect, then the application was incorrect.

Mrs. G. W. Tisdale, the wife, testified that she and the plaintiff were married on December 26, 1914, when she was fourteen years of age and he was seventeen on the 19th before they were married on December 26th. When the insurance was written, corroborative evidence as to her husband's age was obtained from the Bible. (A ruling was reserved by the court on this evidence.) On cross-examination, although she was sure of her signature on the poll registration books, she would not be sure that it was her husband's signature just above her name. She admitted that her husband had not paid poll tax for the last two years. She stated that their first child was born December 8, 1915, and the second was born on January 1, 1917; and that on June 5, 1917, her husband was married, the couple had two children, he was a farmer, and they were living on his farm, R. F. D. Moselle in Jones County, Mississippi. Her name, before marriage, was Ferrill Anderson.

At this juncture, the plaintiff rested; and the defendant thereupon moved that the court exclude all evidence in connection with the Bible and direct the jury to disregard it. This motion was sustained for the reason that no explanation was made as to what had happened to the Bible, and the jury was so instructed. The defendant's requested peremptory instruction having been refused, it then proceeded to adduce the following evidence, consisting of four items to wit:

(1) A certified copy of the World War I draft registration card of George Washington Tisdale, twenty-two years of age, of Moselle, R. F. D. 1, Mississippi. His date of birth was given as December 19, 1895. He was shown to be a farmer, married, living on his own farm, with a wife and two children. It affirmed that 'I have verified above answers and that they are true'; and (2) the registration poll book for Sweetwater Precinct in Jones County, showing that G. W. Tisdale registered on July 3, 1939, in that precinct, giving his age as forty-three years; and, on the line below his name, on the same date, appeared the name of Mrs. G. W. (Ferrill) Tisdale as of the age of forty-one years; and (3) the registration poll book for the same precinct with a subsequent registration, showing that, on July 18, 1957, G. W. Tisdale, Sr. registered to vote, giving his age as sixty-one years; and, on the line just below his name, on the same date, appeared the name of Mrs. G. W. (Ferrill) Tisdale, Sr., giving her age at fifty-nine years; and (4) the affidavit of G. W. Tisdale, Sr. of date of October 10, 1956, before Winston T. Shows, Circuit Clerk, by Jane Turnipseed, D.C., that he was sixty-one years of age; that he was...