Summary
In Home Insurance Company of New York v. Cavin, 162 Miss. 1, 137 So. 490, the insured, in his application, disclosed only one previous fire when he had actually had three others.
Summary of this case from Standard Ins. Co. of N.Y. v. AndersonOpinion
No. 29586.
November 16, 1931. Suggestion of Error Overruled January 11, 1932.
1. INSURANCE. Failure of insured through misunderstanding to disclose prior fire losses held to prevent recovery on policy specially providing for avoidance thereof by false statements in application.
The question in the application for the fire policy was whether applicant had ever suffered loss by fire, and, if so, when and how did fire originate. Insured answered that he had sustained a loss years ago, paid by the Hartford Fire Insurance Company, but failed to disclose losses sustained from three fires other than that mentioned, and stated that he understood the question to refer only to loss by fire on buildings covered by insurance.
2. CONTRACTS.
Where language of contract does not admit of two meanings, party thereto cannot assert that he misunderstood contract.
APPEAL from circuit court of Wilkinson county. HON. R.L. CORBAN, Judge.
R.H. J.H. Thompson, and Fulton Thompson, all of Jackson, for appellant.
Contracts evidenced by insurance policies, the terms thereof being plain of meaning and unambiguous, are enforced by the courts as are the terms of other contracts; so decided more than once by this court.
There are many questions of law so fundamental and so well determined and absolutely and unquestionably settled as to make the citation of authorities in support of them not only useless, but reflections on the intelligence and learning of the court. The question most prominently presented in appellant's original brief is of the character stated.
D.C. Bramlette, of Woodville, for appellee.
There being no citation of authority in appellant's brief, with the greatest respect for opposing counsel, we ask this Honorable Court to affirm the judgment of the lower court.
Goodyear Yellow Pine Company v. Lumpkin, 158 Miss. 578; Johnson v. State, 154 Miss. 512, 122 So. 529.
Contradictory evidence in regard to alleged fraudulent misrepresentation, makes an issue for the jury.
Knight v. Hartford Insurance Company, 142 Miss. 382.
A contract of insurance is construed most strongly in favor of the insured and the mere negligence or carelessness on part of insured, although directly contributing to and causing loss, will not relieve insurer from liability.
Home Insurance Co. of New York v. Moore and Rawles, 151 Miss. 189; Southern Home Insurance Company v. Wall, 156 Miss. 865, 869.
The bona fides of the insured should be left to the decision of the jury.
Miller v. Phoenix Insurance Company of Brooklyn, New York, 105 Miss. 4; Aetna Insurance Co. v. Miller, 113 Md. 686, 78 A. 483; Sussex County Mut. Ins. Co. v. Woodruff, 26 N.J.L. 541.
There is no evidence of fraud whatsoever on the part of appellee since his explanation is perfectly reasonable as to his understanding of question No. 9.
In an action on a fire insurance policy, where the dispute is as to the value of the property destroyed (defendant claiming that plaintiff swore falsely, and obtaining an instruction that, if he did wilfully swear falsely in making proof of loss, he cannot recover), a verdict for plaintiff, where the evidence of value is satisfactory, will not be disturbed because of an instruction given at his instance, that no false swearing in making proof of loss will avoid the policy, unless the evidence satisfies the jury that the plaintiff knowingly and intentionally swore falsely as to some material fact, and that the burden of proof is on the defendant to show the wilful intent.
Phoenix Insurance Company v. Summerfield, 70 Miss. 827.
This is an appeal from a judgment awarding the appellee a recovery on a fire insurance policy. The appellant's complaint is that the court below refused to direct the jury to return a verdict in its favor.
One of the provisions in the face of the policy is that "this policy is made and accepted subject to the stipulations and conditions printed on back hereof, which are hereby specially referred to and made a part of this policy." One of the stipulations on the back of the policy is as follows: "The indemnity contract is based upon the . . . representations contained in the assured's application and diagram of even number herewith, which the assured has signed and permitted to be submitted to the company, and which are hereby made a warranty and part hereof; and it is stipulated and agreed that if any false statements are made in said application or otherwise . . . then . . . this policy shall be null and void."
The application for the policy contains the following question and answer: "Have you ever suffered loss by fire, and if so, when and how did fire originate? A. Yes, years ago. Hartford paid loss — six hundred — no trouble." The evidence discloses that the appellee had suffered loss, prior to the date of his application for the policy here sued on, from three fires other than the one for which his loss was paid by the Hartford Fire Insurance Company. He states that he understood the question to refer only to loss by fire on buildings covered by insurance.
We are relieved from considering the materiality and good faith of the appellee's answer to this question, for the reason that the policy expressly provides that a false answer thereto shall void the policy. Co-operative Life Association v. Leflore, 53 Miss. 1; Planters' Ins. Co. v. Myers, 55 Miss. 479, 30 Am. Rep. 521; 26 C.J. 160.
The language of the question being plain and unambiguous, the appellee's misinterpretation of it is of no consequence, for one of the most elementary rules for the interpretation of written instruments is that, where the language thereof does not admit of two meanings, neither party thereto will be heard to say that he did not understand and assent to it. The appellee answered the question at his peril, and accepted the policy knowing, or charged with the knowledge, that a false answer thereto would render the policy void.
The appellant's request for a directed verdict should have been granted.
Reversed, and judgment here for the appellant.