Opinion
No. 41399.
March 7, 1960.
APPEAL from the Circuit Court of Bolivar County; E.H. GREEN, Judge.
Wm. A. Bacon, Donald E. Mullen, Jackson, for appellant.
I. The lower court erred in refusing to allow C.E. Beeler, district manager of Reserve Life Insurance Company, to remain in the court room during trial as a representative of the company. French v. Sale, 63 Miss. 386; Ryan v. Cranch, 66 Ala. 244; Sherman v. Irving Merchandise Corp. 26 N.Y.S. 645; United Dentists Inc. v. Commonwealth, 162 Va. 347, 173 S.E. 508; Wagley v. Colonial Baking Co. (Miss.), 45 So.2d 717; 88 C.J.S., Sec. 67 p. 175.
II. The lower court erred in permitting the plaintiff to introduce hearsay evidence by Mrs. Ziller Spruill to establish her claim for insurance. Chisolm v. Beaman Machinery Co., 160 Ill. 101, 43 N.E. 769; Dougan v. Dunham, 115 Ga. 1012, 42 S.E. 390; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555; Radtke v. Taylor, 105 Oregon 559, 210 P. 364; 20 Am. Jur., Evidence, Sec. 1071; 38 Cyc. 1371.
III. The lower court erred in failing to sustain appellant's motion for a peremptory instruction.
A. There was no meeting of the minds with reference to the insurance contracts herein and because of the false information contained in the applications, company was entitled to cancel the policies from date of their inception. Brooks v. Brooks, 145 Miss. 845, 111 So. 376; Yazoo M.V.R. Co. v. Jones, 114 Miss. 787, 75 So. 550.
B. The acceptance by the insured of a policy containing a copy of the application showing false answers inserted by the soliciting agent of the company without calling company's attention to the falsity of answers constitutes an adoption by insured of said false answers and entitles insurer to cancel for fraud. Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; Home Ins. Co. v. Thornhill, 165 Miss. 787, 144 So. 861; Home Ins. Co. of New York v. Cavin, 162 Miss. 1, 137 So. 490; Home Mutual Fire v. Pittman, 111 Miss. 420, 71 So. 739; Maryland Cas. Co. v. Adams, 159 Miss. 88, 131 So. 544; Mutual Life Ins. Co. v. Hilton-Green, 60 L.Ed. 1202; New York Life Ins. Co. v. Fletcher, 117 U.S. 519, 29 L.Ed. 934; Preferred Life Ins. Co. v. Thompson, 170 Miss. 575, 155 So. 188; Springfield Fire Marine Ins. Co. v. Nix, 162 Miss. 669, 138 So. 598; 12 Am. Jur., Contracts, Sec. 137; 17 C.J.S., Sec. 137 p. 489.
C. If an insured has misrepresented or failed to disclose a material fact in his application for insurance, the policy may be declared void by insurer, regardless of whether any causal connection exists between the misrepresentation and the resulting disability or death. Ginsberg v. Pacific Mut. Life Ins. Co. of California, 89 F.2d 158; Home Life Ins. Co. v. Madere (Miss.), 101 F.2d 292; Hurt v. New York Life Ins. Co. (Kan.), 41 F.2d 392; Jefferson Standard Life Ins. Co. v. Clemmer, 79 F.2d 724, 103 A.L.R. 171; Malloy v. New York Life Ins. Co., 103 F.2d 439; New York Life Ins. Co. v. Webber, 60 F.2d 22.
D. The insured was under a duty to reveal complete medical histories in his applications for insurance. Home Life Ins. Co. v. Madere, supra; New York Life Ins. Co. v. Burris (Miss.), 165 So. 166; New York Life Ins. Co. v. Price, 16 F.2d 660.
E. Whether or not insured was ignorant of nature of ailments suffered by him and his wife, nevertheless he is not relieved from the effect of its misrepresentation. Goldman v. New York Life Ins. Co., 70 F.2d 513; Home Life Ins. Co. v. Madere, supra; New York Life Ins. Co. v. Burris, supra; Standard Ins. Co. of New York v. Anderson, 227 Miss. 397, 86 So.2d 298; 29 Am. Jur., Insurance, Sec. 526.
F. There can be no agency when an agent is apparently acting for his principal, but is really acting for himself, or third persons, and against his principal. Ryan v. Cranch, supra.
IV. Plaintiff's instructions were erroneous. Saucier v. Life Cas. Ins. Co. (Miss.), 198 So. 625; Wilkinson v. Goza, 165 Miss. 38, 145 So. 91; Amend. XIV, Art. I, Sec. 10, U.S. Constitution; Art. III, Sec. 16, Constitution 1890; Sec. 5196, Code 1930; Sec. 5706, Code 1942.
V. The Court erred in failing to grant defendant a directed verdict and in failing to grant a new trial.
Charles C. Jacobs, Jr., John L. Hatcher, Cleveland, for appellee.
I. Where insurance is solicited on behalf of an insurer and the soliciting agent prepares the application therefor, and transmits same to the insured, said soliciting agent is the insurer's general agent and the knowledge and information acquired in taking the application is, therefore, the knowledge and information of the insurer. Calvert Fire Ins. Co. v. Swain, 224 Miss. 85, 79 So.2d 537; Home Ins. Co. of New York v. Thornhill, 165 Miss. 787, 144 So. 861; Sec. 5706, Code 1942.
II. Where an agent of the insurer undertakes the preparation of an application for insurance and by fraud, mistake, or omission fails to correctly write down the applicant's answers to questions actually propounded, the insurer will be bound by such answers just as if they had been written down correctly by the agent, and this is true even though a copy of the application may have been attached to the policy when received by the insured. American Life Ins. Co. v. Mahone, 56 Miss. 180; Fidelity Casualty Co. of New York v. Cross, 131 Miss. 632, 95 So. 631; Fidelity Mutual Life Ins. Co. v. Miazza, 93 Miss. 18, 46 So. 817; Fraternal Aid Union v. Whitehead, 125 Miss. 153, 87 So. 453; Griego v. New York Life Ins. Co., 102 P.2d 31; Mututl Reserve Fund Life Assn. v. Ogletree, 77 Miss. 7, 25 So. 869; Planters Ins. Co. v. Myers, 55 Miss. 479; Springfield Fire Marine Ins. Co. v. Nix, 162 Miss. 669, 138 So. 598; World Ins. Co. v. Bethea, 230 Miss. 765, 93 So.2d 624, 355 U.S. 181, 78 S.Ct. 262.
III. Reply to appellant's Point I. French v. Sale, 63 Miss. 386; Wagley v. Colonial Baking Co. (Miss.), 45 So.2d 217; 88 C.J.S., Sec. 67 p. 175.
IV. Reply to appellant's Point II. Germania Life Ins. Co. v. Bouldin, 100 Miss. 660, 56 So. 609; Metropolitan Life Ins. Co. v. McSwain, 149 Miss. 455, 115 So. 555; Saucier v. Life Casualty Ins. Co., 189 Miss. 693, 198 So. 625; 20 Am. Jur., Evidence, Sec. 1071.
V. Reply to appellant's Point III. Fidelity Mutual Life Ins. Co. v. Miazza, supra; Home Ins. Co. of New York v. Cavin, 162 Miss. 1, 137 So. 490; Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739; Maryland Casualty Co. v. Adams, 159 Miss. 88, 131 So. 544; New York Life Ins. Co. v. Burris, 174 Miss. 658, 165 So. 116; New York Life Ins. Co. v. Fletcher, 117 U.S. 519, 29 L.Ed. 934, Preferred Life Ins. Co. v. Thompson, 170 Miss. 575, 155 So. 188; Springfield Fire Marine Ins. Co. v. Nix, supra; Standard Ins. Co. of New York v. Anderson, 227 Miss. 397, 86 So.2d 298; Wilkinson v. Goza, 165 Miss. 38, 145 So. 91.
VI. Reply to appellant's Point IV. Calvert Fire Ins. Co. v. Swain, supra; Saucier v. Life Casualty Ins. Co., supra; World Ins. Co. v. Bethea, supra.
This is a suit on an insurance policy and presents purely a question of fact which was submitted by the lower court to the jury and the jury returned a verdict in favor of the insured. We think the case is controlled by the decision in World Insurance Company v. Bethea, 230 Miss. 765, 93 So.2d 624. But the appellant's counsel states in his brief that he has examined the Supreme Court record in the Bethea case and he contends it is not in point because no copy of the application for the insurance was attached to the policy. Evidently counsel did not examine the record very closely for if he had looked at pages twelve to sixteen thereof, he would have found a photostat of the original policy to which there was attached a photostatic copy of the application.
We are of the opinion that the case was properly submitted to the jury and that the judgment of the lower court based on the jury's verdict should be and it is hereby affirmed.
Affirmed.
Kyle, Holmes, Ethridge and Gillespie, JJ., concur.