Opinion
No. 31745.
May 20, 1935.
INSURANCE.
In action on life policy containing provision that, if age of assured were misstated, amount payable should be such as premium would have purchased at correct insurable age, verdict in accordance with plaintiff's contention that assured was twenty-six, as stated in policy, at time of its issuance, held contrary to weight of evidence.
APPEAL from the circuit court of Adams county.
HON. R.L. CORBAN, Judge.
Action by Katie R. Parker against the Life Casualty Insurance Company. From the judgment, defendant appeals. Reversed and remanded.
L.C. Gwin, of Natchez, for appellant.
Even if the court should hold that the testimony of the appellee and her witness Patterson was competent to establish the age of the assured and was sufficient to render the issue a jury question, then under the rule announced in Mobile Ohio R.R. v. Johnson, 141 So. 581, 165 Miss. 397; Newton v. Homochitto Lbr. Co., 138 So. 564, 162 Miss. 20; Columbus G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817, it was the duty of the court to set aside the verdict as against the overwhelming weight of the evidence and grant appellant a new trial.
Upon the issue of the age of the assured the testimony of the appellee and her witness at best was only a conclusion drawn from the general appearance of the assured over a period of the acquaintanceship of each which was testified to be ten years, while the appellant's testimony was direct and positive given by one witness, the mother of the assured, who is in the best position of any one to give the age of her son, and by another witness, the brother of the assured, who was, save for the mother, the best witness obtainable as to the age of the assured.
Upon the issue of the illness of the assured at the time of the issuance of the policy with pulmonary tuberculosis, the appellee has established the fact that the direct and proximate cause of the death of the assured was pulmonary tuberculosis by her introduction of the proofs of death.
The attending physician stated in the proof of death introduced by the appellee that the disease causing the death of assured was pulmonary tuberculosis; that the duration of illness, from personal knowledge, was at least six months.
By this evidence the appellee is bound for the reason that it was introduced by her and she, therefore, vouched for its veracity.
Crowder v. Nelson, 32 Miss. 260; Tarver v. Lindsey, 137 So. 93, 161 Miss. 379; Crichton v. Halliburton Moore, 122 So. 200, 154 Miss. 265; Stevens v. Stanley, 122 So. 755, 153 Miss. 802, 154 Miss. 627, 121 So. 814, 153 Miss. 801.
Whittington Brown, of Natchez, for appellee.
The instruction complained of clearly presented to the jury, in proper and fair language, the law applicable to the issue, or issues involved. These issues, counsel admits, were the question of age and the question of health.
With respect to the proof of age by the appellee, counsel says that at best this proof was just conclusions, drawn from the general appearance of the insured over a period of ten years. No birth certificates, Bibles or other documents were introduced by either side. All of the testimony of age was, then, based upon general impression, history and appearance, on the one hand, or mathematics and dates on the other hand. In short, the testimony of any one of the witnesses had to be based either on a general conclusion or idea, or else drawn from the specific birth date, in the past.
We submit that the jury had the right to look with the strongest suspicion on all of the testimony of the witnesses for the defendant relative to health and age.
As against this vague and contradictory testimony, the plaintiff testified that at the time the policy was issued the insured was in good health; that she was twenty-five, and he about a year older than she.
The policy of insurance sued upon contains the provision that, "if the age of the assured be misstated, the amount payable under this policy shall be such as the premium would have purchased at the correct insurable age." The age stated in the policy is twenty-six. According to the record, the assured had only two near relatives, his mother and his brother — the brother being forty-five years old — with whom the assured lived. Both the mother and the brother testified that at the date of the policy the assured was thirty-three years old. The only contradiction of this was the testimony of two witnesses who gave their estimate of his age from their observation of his appearance, and who testified that the assured had told them he was about twenty-six years old at the time of the issuance of the policy.
The last-mentioned statements by the assured, although unsworn, 22 C.J., p. 239, note 94, were sufficient to take the case to the jury; but under the opinion in the recent case, Messina v. New York Life Ins. Co. (Miss.), 161 So. 460, the direct testimony of the mother and the much older brother, delivered as witnesses under oath, is of so much higher grade in quality of proof that we must hold that upon the issue of age the verdict is against the great weight of the evidence.
We are inclined to the opinion also that the verdict is against the great weight of the evidence upon the issue of the diseased condition of the assured at the time of the delivery of the policy, but, since the judgment must be reversed upon the other issue, we do not pursue the second inquiry.
Reversed and remanded.