Williams v. N. Y. Life Ins. Co
| Decision Date | 01 March 1923 |
| Docket Number | 23191 |
| Court | Mississippi Supreme Court |
| Parties | WILLIAMS v. N. Y. LIFE INS. CO |
APPEAL from chancery court of Leake county, HON. T. P. GUYTON Chancellor.
Suit by the New York Life Insurance Company against Pensie Williams. From a decree for plaintiff, defendant appeals. Affirmed.
Decree affirmed.
Byrd & Byrd, for appellant.
The doctrine that statements made by the insured on the question of health, when the policy is payable to a third person, are inadmissible, is as well settled in this state as any proposition of law can be. The Mississippi case on this point is The Grangers' Life Ins. Co. v. Mary W. Brown, 47 Miss. 308. 1 Ruling Case Law, page 506.
The third assignment of error is that "The decree of the court is against the law of the case." The insurance company, in this case, contends that the answers to certain inquiries were false, as to whether he had been attended by physicians or not. The mere fact that he answered that he had not been attended by a physician when in fact and in truth he had been is immaterial and does not avoid the policy unless it is shown by the clearest and most convincing proof that he was affected with some serious ailment that would materially impair his health and shorten his life and that when he made the answer to the interrogatory he knew that he was affected with a disease of that character. This is declared by the supreme court of the United States, in the case of Emilie Miller v. American Life Ins. Company, 28 L.Ed. (U.S.) p 447. The books abound in authorities announcing the same doctrine.
There is another serious question in this case, in this connection and that is whether or not the appellee is bound by the acts of its medical examiner, Dr. Stribling. This record shows that the assured, George Washington Williams, submitted himself to Dr. Stribling, who testified that he made a thorough examination of Williams and that he found no trace whatever of any serious disease. The insurance company is bound by his report, unless Williams knowingly and intentionally perpetrated a fraud upon him. At page 1133 Vol. 14 of Ruling Case Law, we find this laid down as the law under these circumstances: "An insurance company is bound by the act of its medical examiner in reporting an applicant to be a fit subject for insurance, unless he was purposely misled by the applicant, and inveigled into recommending him as a fit subject for insurance, when but for such deception he would not have done so." This seems to be the law as announced by all of the authorities.
A summons must be issued before a suit can be considered commenced is a rule which is expressly upheld by this court. See J. A. Green v. Board of Supervisors, 58 Miss. 337. In this case the court holds that it is a question of fact as in the present case. But we think the proposition is forever set at rest by the decision of this court in the case of Stewart v. Pettit, 48 So. 5, wherein the court said: "The general rule seems to be clearly settled that a suit is not commenced until summons has been issued."
The Mississippi cases cited by counsel for appellee to-wit: Bacon v. Gardner, Allen v. Mandeville, and Maddo v. Jones, have no application here because they were rendered when he had a statute on the question as to when a suit is considered commenced, but now we have no statute. Consequently the rule just quoted which is the general rule, must prevail. We fail to find the case of Supert v. Dillard, cited by appellee; there is no such case as that in the 58th Mississippi as we are able to find.
Counsel in this brief states that the record shows that we fail to deny certain allegations of the bill. Now we respectfully submit that counsel is mistaken as to this, our answer shows that we denied every allegation of the bill material to the question at issue and we respectfully refer to the bill and answer as shown by the record.
We earnestly insist that this case should in view of the facts, be reversed and dismissed.
A. H. Longino, for appellee.
Since, then, the appellant in her assignment of errors has defined and limited the issues to be considered and passed upon by this court, I beg to direct attention to the facts bearing upon these issues respectively: First: The contract carries the following very plainly expressed provision, "The policy and the application therefor constitute the entire contract." R. p. 14. Second: In his application for the policy the said George W. Williams therein represented to and agreed with appellee that the insurance applied for should not take effect unless the policy was delivered to and received by him while he was in good health. p. 66.
The court's attention is here...
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