Opinion
No. 41394.
May 16, 1960.
1. Insurance — material false representations in application precluded insured's right to recovery under health and accident policy.
Where an insured failed to give true and complete answers either to insurer's agent, or on her application for insurance, by omitting any report of illnesses and hospitalizations within the year immediately preceding issuance of the policy, and by omitting any references to certain illnesses, injuries and hospitalizations within ten years preceding issuance of the policy, insured's disclosure as to prior illnesses was wholly inadequate and insufficient, and precluded insured's right to recovery under health and accident policy in question.
Headnote as approved by Arrington, J.
APPEAL from the Circuit Court of Lowndes County; JOHN D. GREENE, JR., Judge.
Watkins Eager, Roger C. Landrum, Jackson, for appellant.
I. Appellant is not estopped to defend on the ground that the policy was void for failure of appellee to give full and truthful answers in her application. Aetna Ins. Co. v. Moore, 231 U.S. 543, 58 L.Ed. 356; American Bankers' Ins. Co. v. Lee, 161 Miss. 85, 134 So. 836; American National Ins. Co. v. Walters, 93 So.2d 616; Continental Casualty Co. v. Hall, 118 Miss. 871, 80 So. 335; Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 612; Home Ins. Co. of N.Y. v. Thornhill, 165 Miss. 787, 144 So. 861; Home Mutual Fire v. Pittman, 71 So. 739; Lewis v. Mutual Reserve Fund Life Assn. (Miss.), 27 So. 649; Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544; Metropolitan Life Ins. Co. v. Alterovitz (Ind.), 14 N.E.2d 570; Mutual Life Ins. Co. of N.Y. v. Hebron, 166 Miss. 145, 146 So. 445; Mutual Life Ins. Co. of N.Y. v. Hilton-Green, 241 U.S. 613, 60 L.Ed. 1202; National Union Fire Ins. Co. v. Provine, 148 Miss. 659, 114 So. 730; New York Life Ins. Co. v. Fletcher, 117 U.S. 519, 29 L.Ed. 934; New York Life Ins. Co. v. O'Dom, 100 Miss. 219, 56 So. 379; Planters' Ins. Co. v. Myers, 55 Miss. 479; Preferred Life Assur. Soc. v. Thompson, 170 Miss. 575, 155 So. 188; Prudential v. Ford (Del.), 144 A.2d 237; St. Paul Mercury Indemnity Co. v. Ritchie, 190 Miss. 8, 198 So. 741; Saucier v. Life Casualty Ins. Co. of Tenn., 189 Miss. 693, 198 So. 625; Springfield Fire Marine Ins. Co. v. Nix, 162 Miss. 669, 138 So. 598; Travelers Fire Ins. Co. v. Price, 169 Miss. 531, 152 So. 889; World Ins. Co. v. Bethea, 230 Miss. 765; 93 So.2d 624; Sec. 5706, Code 1942.
II. If we assume, for the sake of this argument only, that oral disclosures to the agent Cox were notice to the company, still appellant was entitled to a peremptory instruction for failure of appellee to give truthful and complete answers to all of the questions on the application to Cox. Fidelity Mutual Life Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817; Home Ins. Co. of N.Y. v. Cavin, 162 Miss. 1, 137 So. 490; New York Life Ins. Co. v. Burris, 174 Miss. 658, 165 So. 116; Springfield Fire Marine Ins. Co. v. Nix, supra; Sudler v. Life Casualty Ins. Co., 220 Miss. 633, 71 So.2d 422; World Fire Marine Ins. Co. v. King, 187 Miss. 699, 191 So. 665; Amend. XIV, U.S. Constitution; Sec. 14, Constitution 1890.
III. A misrepresentation or concealment by an applicant for insurance in the application is material if it affects either the acceptance of the risk by the insurer or increases the hazard assumed. The misinterpretations here were material as a matter of law. Ginsburg v. Pacific Mutual, 89 F.2d 158; Great Eastern Casualty Co. v. Collins (Ind.), 126 N.E. 86; Home Life Ins. Co. v. Madere, 101 F.2d 292; Jefferson Standard Life Ins. Co. v. Clemmer, 79 F.2d 724; Mallory v. New York Life Ins. Co., 103 F.2d 439; Mutual Benefit Ins. Co. v. Ratliff (Va.), 175 S.E. 870; New York Life Ins. Co. v. Burris, supra; New York Life Ins. Co. v. Price, 16 F.2d 660; Thomas v. New York Life Ins. Co. (N.D.), 260 N.W. 605; Union Indemnity v. Dodd, 21 F.2d 709; Sec. 5687.5, Code 1942.
Richard H. Carlisle, Carter Van Every, Columbus, for appellee.
I. Appellant is estopped to defend on the ground that the policy was void for failure of appellee to give full and truthful answers in her application. World Ins. Co. v. Bethea, 230 Miss. 765, 93 So.2d 624.
II. The facts were disputed as to whether or not any information was withheld or any fraudulent answer given or any misrepresentations made and all of these conflicts in the testimony were submitted to a jury under proper instructions of the court and were resolved in favor of appellee and against the appellant, and there was sufficient evidence to sustain the jury's findings in this case.
III. There were no concealment of information by the appellee and there were no misrepresentation by her. Calvert Fire Ins. Co. v. Swain, 224 Miss. 85, 79 So.2d 537; Fidelity Casualty Co. of N Y v. Cross, 131 Miss. 632, 95 So. 631; Home Ins. Co. of N Y v. Thornhill, 165 Miss. 787, 144 So. 861; Planters Ins. Co. v. Myers, 55 Miss. 479; World Ins. Co. v. Bethea, supra; Sec. 5706, Code 1942.
This is an appeal from a judgment of the Circuit Court of Lowndes County awarding appellee, Mrs. Mary Willis Moor, plaintiff below, a judgment upon a jury verdict of $646.49 against the defendant-appellant, Mutual Benefit Health Accident Association of Omaha. Appellee's judgment was based upon two claims under a health and accident insurance policy issued her by the appellant.
To sustain the judgment, appellee relies principally upon World Insurance Company v. Bethea, 230 Miss. 765, 93 So.2d 624 (1957), which held that, if a soliciting agent of an insurance company undertakes the preparation of an application for insurance, and by mistake or omission fails to write down correctly the applicant's answers to questions propounded, his company will be bound by such answers just as if they had been written down in the language used by applicant. In short, a soliciting agent with the authority to fill out applications may bind his principal by his erroneous completion of the application.
(Hn 1) However, after a careful examination of this record, we have concluded that the doctrine of the Bethea case does not apply. It is undisputed, in appellee's own testimony, that she failed to disclose, to the soliciting agent or on the application, two illnesses and hospitalizations within the year immediately preceding issuance of the policy, and eleven illnesses, injuries, and hospitalizations within the ten years preceding issuance of the policy. Appellee admitted that not only were they not reported in the application, but she did not tell the agent about them. Hence it is undisputed that she failed to give true and complete answers either to the agent or on the application, having omitted any report of the above listed injuries, hospitalizations or illnesses. For this reason, appellee's disclosure as to prior illnesses was wholly inadequate and insufficient, and the trial court should have given a peremptory instruction for the appellant.
Sudler v. Life and Casualty Insurance Company of Tenn., 220 Miss. 633, 71 So.2d 422 (1954) is in point. The evidence showed there without dispute that the insured failed to disclose in an application for reinstatement of life insurance material information as to prior illnesses. Hence it was held there was no issue for submission to a jury concerning imputed knowledge of the insurer. To the same effect are New York Life Insurance Company v. Burris, 174 Miss. 658, 165 So. 116 (1936), and Home Insurance Company of New York v. Cavin, 162 Miss. 1, 137 So. 490 (1932). See also World Fire and Marine Insurance Compny v. King, 187 Miss. 699, 191 So. 665 (1939).
Accordingly the judgment of the circuit court is reversed and judgment is rendered here for appellant.
Reversed and judgment here for appellant.
McGehee, C.J., and Kyle, Ethridge and Gillespie, JJ., concur.