Opinion
No. 31704.
May 6, 1935.
1. CONTRACTS.
In construing contract, effect must be given to every provision therein unless parts are in unavoidable conflict.
2. INSURANCE.
Incontestable provision in policy cannot be used as a means of rewriting the contract by striking out other valid and unambiguous provisions governing the ultimate amount payable under the policy.
3. INSURANCE.
Provision in policy for adjustment of amount payable according to true age of insured held not invalid as providing for "contest" of policy within meaning of incontestable clause so as to be barred thereby.
4. EVIDENCE.
Rule that subsequent statements of insured cannot be received to adversely affect interests of beneficiaries does not apply, where insured reserves right to change beneficiaries.
5. EVIDENCE.
In action on policy where payment of full amount was resisted on ground that insured had misstated his age, admitting registration books and naturalization papers to show insured's age held not error as affecting interest of beneficiaries by declarations made by insured subsequent to issuance of policy, where insured reserved right to change beneficiaries.
6. EVIDENCE.
When a rough approximation of age of person is sufficient for purpose of particular inquiry, general practice is to allow witnesses to answer to age as matter of opinion, and even when very nearly exact age is subject under investigation, opinion evidence is admissible under rule of necessity when no better and no higher class of evidence is practicably obtainable.
7. EVIDENCE.
It is common knowledge that there is nothing more uncertain and undependable than attempt to fix exact age of a person by his appearance and conduct, particularly when proffered opinions are based on appearance of person after he has reached middle age.
8. EVIDENCE.
Best proof of age is testimony of living witnesses who were present at birth and distinctly remember the event, or who, although not present, yet were so situated as to have positive knowledge and remembrance of the date thereof.
9. EVIDENCE.
Definite statements or declarations of person whose age is in question, made by him during his lifetime on solemn occasions when it was his bounden duty to speak the truth, are admissible when there is no motive on his part to speak other than the truth.
10. EVIDENCE.
In action on life policy where full payment of policy was resisted on ground of insured's misrepresentation of age, and evidence of birth certificate, registration books, and naturalization papers relative to insured's age had been produced, and accepted, excluding evidence of age based on mere opinions of insured's friends and founded on mere physical appearance and actions of insured at time of his death held not error.
11. EVIDENCE.
Generally, necessity lies at foundation of rule as to admissibility of opinion evidence as to age and, when necessity for opinions no longer exists, opinions are ordinarily no longer admissible.
APPEAL from the circuit court of Hinds county.
HON. JULIAN P. ALEXANDER, Judge.
Action by S.D. Messina and others against the New York Life Insurance Company. From an adverse judgment, plaintiff appeals. Affirmed.
E.E. Hindman and Hamilton Todd, all of Jackson, for appellants.
In the case at bar the policy makes no reference to an application. The policy alone contains the entire contract of the parties.
Germania Life Ins. Co. v. Bouldin, 56 So. 609.
The policy itself does not show the age of the insured. On the back of the policy are the words: "Age 42." That, however, is no part of the contract.
32 C.J. 1159, sec. 269.
It is competent to prove age of a person by the testimony of witnesses who had known such person for many years.
Wigmore on Evidence, sec. 660, page 755; Winter v. State, 123 Ala. 1, 26 So. 949; People v. Bond, 13 Cal.App. 175, 109 P. 150; Libre v. Brotherhood of Am. Yeoman, 168 Ill. App. 328; Elsner v. Supreme Lodge, K.L.H., 98 Mo. 640.
In New York Life Ins. Co. v. Manning, 124 N.Y. Supp. 775, the court said that the policy expressly declared that it was incontestable, and that the insurer could not avoid its obligation on the ground of fraud or misrepresentation.
In the following cases a clause providing for incontestability from date, and allowing no period for the insurer to investigate after the issuance of a policy, has been held valid, and given effect so as to bar the insurer from asserting fraud:
National Annuity Asso. v. Carter, 96 Ark. 495, 132 S.W. 633; Duvall v. National Life Ins. Co., 28 Idaho, 356, L.R.A. 1917E 333; Union Cent. L. Ins. Co. v. Fox, 106 Tenn. 347, 82 Am. St. Rep. 885; MacKendree v. Southern States L. Ins. Co., 99 S.E. 806; Patterson v. Natural Prem. Mut. L. Ins. Co., 100 Wis. 118, 42 L.R.A. 253, 69 Am. St. Rep. 899.
There is no question of fraud projected into this case, the company does not allege any fraud, and has offered no proof of such defense. In the absence of fraud, the incontestable clause as we have in this policy will stand, and no reduction of amount provided for will be permitted.
Welch v. Union Cent. L. Ins. Co., 50 L.R.A. 774, 78 N.W. 853; Germania Life Ins. Co. v. Bouldin, 56 So. 609; Eastern District Piece Dye Works v. Travelers' Ins. Co., 26 A.L.R. 1514.
The appellants should have been permitted to present to the jury the testimony of witnesses, who had known insured for many years, as to age of insured at time of his death in January, 1934.
Wigmore on Evidence, sec. 660, page 755; Winter v. State, 123 Ala. 1, 26 So. 949; Libre v. Brotherhood of American Yeoman, 168 Ill. App.? 328; Elsner v. Supreme Lodge, K.L.H., 13 Cal.App. 175, 109 P. 150.
The original policy in this case is filed with the record and is before this court for inspection. An examination of the policy, issued in the year 1901, over thirty-four years old, will plainly show that it is very different from modern policies in several material respects. The wording of the incontestable clause is materially different. It simply says: "This policy is incontestable from date of issue."
In the present policy, the incontestable clause is absolute in form and contains no exception.
Mutual Life Ins. Co. of New York v. New, 125 La. 41, 51 So. 61, 27 L.R.A. (N.S.) 431.
The issue before the court was Joseph Messina's age at the time he made the application in 1901. To prove his age then it was competent to show what his age was at any other time.
State v. Koettgen, 88 N.J.L. 51, 95 A. 747; Wigmore on Evidence, sec. 660.
Watkins Eager, of Jackson, for appellee.
An insurance company is not precluded by the incontestable clause from adjusting the amount due under the terms of the policy according to the true age of the insured.
Murphy v. Trav. Ins. Co., 234 N.Y.S. 278; Sipp v. Phil. Ins. Co., 142 A. 221; Met. Ins. Co. v. Beha, 235 N.Y.S. 501; Sanders v. Ins. Co., 10 F.2d 143; Hancock Ins. Co. v. Ricks, 183 N.E. 93; Jolley v. Ins. Co., 154 S.E. 400; N.A. Union v. Trenner, 138 Ill. App. 586; Met. Ins. Co. v. Lambert, 157 Miss. 759; Atl. Ins. Co. v. Serio, 157 So. 474.
Appellee proved that the policy was based on the assumption that insured was born in 1859 and that the premiums paid if birth was in 1852 would have only purchased two thousand four hundred ninety-three dollars and eighty-one cents of insurance. Appellee had a right to reduce the amount due appellants if insured had misstated his age or also if the assumption was merely incorrect.
Metro. Ins. Co. v. Scott, 160 Miss. 537; 33 C.J., secs. 837 and 842, pages 113 and 117; Eddleson v. Met. Ins. Co., 158 N.Y.S. 1018.
Appellee insurer sustained its burden of proof that insured was born in 1852 by the strongest kind of evidence, namely, official records and sworn written admissions of insured. The same was material, relevant and competent.
22 C.J., pages 232, 297-317 and 801; Sections 1564, 1585 and 6184, Code of 1930; State v. Oliver, 78 Miss. 5; Grenada Cotton Compress Co. v. Atkinson, 94 Miss. 93; Branch v. State, 80 So. 482; Bertram v. Adm., Ann. Cas. 1912A 1217; Pickering v. Peskind, 183 N.E. 301; Love v. State, 125 So. 685; Landers v. Hayes, 72 So. 107; Clark v. Wessendorf, 275 P. 925; State v. Abernathy, 130 S.E. 619; Farmer v. Orme, 21 P.2d 977; U.S.C.A., Title 8, secs. 356 and 398, note 1617; 22 C.J. 1070, 1083 and 1089; Des Moines Bd. v. Taylor, 108 N.W. 927; Fitchburg v. Luerenburg, 102 Mass. 358; Clark v. Slidell, 5 Rob. 330; Adams v. Carter, 25 So. 669; Watkins v. Miss. State Bd., 154 So. 277; Mullens v. Shaw, 77 Miss. 900; Bridges Hill v. Sup., 58 Miss. 817; Mallory v. Walton, 81 So. 113; Self v. N.Y. Life Ins. Co., 56 F.2d 364; Hews v. Equitable, 143 Fed. 850; Benefit Assn. v. Armbruster, 129 So. 78; Atlanta Mut. v. Price, 97 So. 826; Dye Works v. Travelers Ins. Co., 26 A.L.R. 1505; Granger's Ins. Co. v. Brown, 57 Miss. 308; Equitable Life v. Campbell, 151 N.E. 682; Spaulding v. Mutual Ins. Co., 109 A. 22; Institute v. Lingenfelser, 146 A. 123; Wold v. City, 9 P.2d 931; Cook Const. Co. v. Crawford, 26 F.2d 574, 49 Sup. Ct. 29; Lundgren v. U. Ind., 213 N.W. 553.
Admissions, particularly written admissions, and more particularly admissions under oath, are a highly satisfactory character of evidence and cogent proof is required to overcome the same.
22 C.J., sec. 507, page 424; Smiley v. Mut. Ins. Co., 52 S.W.2d 12; Mindlin v. Dorfman, 189 N.Y.S. 265; Spurlock v. Brown, 18 S.W. 868; Moore v. Grayson, 64 P. 1074; In re Weissman, 37 F.2d 585.
Plaintiff appellants' opinion evidence based solely on the appearance of insured was inadmissible in this case.
The opinion evidence sought to be introduced was not the "best evidence."
22 C.J., pages 969 and 974; State v. Oliver, 27 So. 988; Smith v. Mo. Ins. Co., 60 S.W.2d 781; Section 1598, Code of 1930; In re Carver, 103 Fed. 624; State v. Koettgen, 99 A. 400; Cupryk v. Ruthenian, 66 Pa. Sup. Ct. 595; Denoyer v. Ryan, 24 Fed. 77; Welch v. Worsley, 161 N.E. 493; Brown v. Texas, etc., R. Co., 138 So. 221; Masonite Corp. v. Hill, 154 So. 295; Fisher Ball v. Carter, 160 N.W. 15.
Opinion evidence is always inadmissible when the court has before it facts upon which the fact can be determined.
22 C.J. 560; Hand v. State, 47 So. 126; Kress v. Sharp, 156 Miss. 693; Hopkins v. La. Ry. Co., 92 So. 717; State v. Koettgen, 99 A. 400; In re Christy, 258 N.Y.S. 243; In re Stern's Estate, 244 N.Y.S. 250; The Blandon, 39 F.2d 933; North View Land Co. v. City, 169 N.W. 644; Armstrong v. City of Monett, 228 S.W. 771.
Even if admissible, which is denied, opinion evidence was of no greater value than the facts upon which it was based and had no probative value here.
People v. Kielozewski, 109 N.E. 981; Thompson v. Jordan, 2 S.W.2d 640; Bishop v. Scharf, 241 N.W. 3; Dossenbach v. Reidhar's Ex., 53 S.W.2d 731.
Opinion evidence is inadmissible as to the direct point in issue.
22 C.J. 414-415 and 502-504; Louisville, etc., R. Co. v. Natchez, 67 Miss. 399; Grace v. Gulf, etc., R. Co., 25 So. 875; Crawford v. El Paso, etc., Co., 288 S.W. 169; St. L., etc., R. Co. v. Barton, 18 F.2d 97.
There was no other evidence in the record that insured was born in 1859 except the opinion evidence, which if admissible was pure conjecture.
Succession of Murray, 7 So. 126; Hopkins v. Huff, 67 Mo. App. 394; Suffolk County v. Shaw, 47 N.Y.S. 349; Sweeney v. York Motors, 128 A. 350; Landers v. Hayes, 72 So. 106; Pluard v. The Maccabees, 136 N.E. 767.
Defendant, appellee, was entitled to a directed verdict.
Fatheree v. Griffin, 153 Miss. 570; M. O.R. Co. v. Gulf States Co., 92 So. 235; Elliott v. R. Co., 145 Miss. 768; Clark v. Moyse Bros., 95 Miss. 303; Wooten v. R. Co., 89 Miss. 322; Newton v. Homochitto Lbr. Co., 162 Miss. 20.
Argued orally by George B. Hamilton, for appellants, and by Mrs. Harry Hulen and W.H. Watkins, Jr., for appellee.
On the 16th day of October, 1901, Joseph Messina applied to appellee insurance company for the twenty-year pay policy of insurance involved in this case. In his application, properly admitted in evidence, he gave the date of his birth as June 10, 1859, which would make his age at that time forty-two. On the 31st day of October, 1901, appellee company issued the policy payable to a named beneficiary, but the policy carried an express stipulation by which the insured could change the beneficiaries at any time upon written notice to the company. Changes in that respect were in fact subsequently made by the insured. The proof shows that the policy was issued on the faith that the age of the insured was correctly stated in his application, and that the initial premium and all subsequent premiums were calculated and paid on that basis, that is to say, on the basis of the age of forty-two.
The policy contained the following provisions: "If the age of the Insured is incorrectly stated, the amount payable under this Policy shall be the Insurance which the annual premium paid would have purchased at the true age of the Insured. . . . This Policy is Incontestable from Date of Issue."
Joseph Messina, the insured, died on January 9, 1934. When proof of death was furnished, some question arose as to the age of the insured at the time of the issuance of the policy, and upon investigation then made it was asserted by the insurance company that the insured was born in 1852 and that his actual age at the time of the issuance of the policy was forty-nine instead of forty-two. The company thereupon tendered to the beneficiaries, not the sum of three thousand dollars, which was the principal amount named in the face of the policy, but two thousand four hundred ninety-three dollars and eighteen cents, which both sides admit is the correct amount when calculated upon the age of forty-nine. The beneficiaries declined to accept the tendered amount, and brought suit for the three thousand dollars specifically named in the policy.
On the trial the defendant insurance company introduced in evidence a birth certificate taken from the municipal records of the town of Cefalu in Sicily, the birthplace of the insured, which showed that Joseph Messina, the son of Pietro and Melchiora Messina, was born on June 3, 1852. Also the registration books in Hinds county, Mississippi, showing that the insured registered as a voter in 1914, giving his age at that time as sixty-two. Also a certified copy of the naturalization papers of the insured, and particularly his sworn declaration of intention, in which he stated that he was born in Cefalu, Italy, on July 30, 1852. All this evidence shows that the insured, when the policy was issued to him, was forty-nine years old.
To controvert this showing the beneficiaries offered the evidence of four elderly witnesses who testified that they had known the insured for a period of from fifteen to thirty years and had seen him nearly every day during that time, and although they had never heard him state his age, they were of the opinion, judging from his appearance and actions, that he was approximately seventy-five years old at the time of his death in 1934, which would make him forty-two years old at the time he took out the policy in question in 1901. The court excluded this opinion evidence, and gave a peremptory instruction that the plaintiffs recover the two thousand four hundred ninety-three dollars and eighteen cents tendered by the insurer.
It is the principal contention of the appellant beneficiaries that the insurer is precluded from any question as to the face amount of the policy because of the incontestable clause above quoted. In this we think appellants are mistaken. In construing any contract, effect must be given to every provision in it, Harris v. Townsend, 101 Miss. 590, 597, 58 So. 529, unless the parts are in unavoidable conflict. Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 424, 71 So. 739. There is no conflict between the incontestable clause and the clause providing for an adjustment of the ultimate amount payable, on the basis of the true age of the insured. As said by Cardozo, C.J., in Metropolitan Life Ins. Co. v. Conway, 252 N.Y. 449, 169 N.E. 642, the incontestable clause precludes an insurance company from questioning the validity of the contract in its inception or from contending that it has thereafter become invalid by reason of a condition broken. The incontestable provision, such as in this case, has no other or further effect. It cannot be used as a means of rewriting the contract by striking out of it other valid and unambiguous provisions governing the ultimate amount payable under the policy. The provision for adjustment according to the true age gives the beneficiaries everything that has actually been paid for, whether more or less than the principal amount named on the face of the policy, and is, therefore, just to them and to the insurer, as well as to policyholders generally. Such an adjustment is not a contest of the policy, but is a carrying out of its precise terms. Murphy v. Travelers' Ins. Co., 134 Misc. 238, 234 N.Y.S. 278; Sipp v. Philadelphia Life Ins. Co., 293 Pa. 292, 142 A. 221; North American Union v. Trenner, 138 Ill. App. 586; and compare Lavender v. Volunteer State Life Ins. Co. (Miss.), 157 So. 101.
Appellants next contend that the court erroneously admitted the registration books and the naturalization papers because this would be to affect the interest of the beneficiaries by declarations made by the insured subsequent to the issuance of the policy, and appellants rely on Grangers' Life Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446. The rule that subsequent statements of the insured cannot be received to adversely affect the interests of beneficiaries does not apply where the insured reserves the right to change the beneficiaries, and thereby remains the master of the policy so far as concerns beneficiaries, as is the case here before us. Atlanta Mutual Ins. Co. v. Price, 210 Ala. 334, 97 So. 826; Equitable Life Assur. Soc. v. Campbell, 85 Ind. App. 450, 150 N.E. 31, 151 N.E. 682; Self v. New York Life Ins. Co. (C.C.A.), 56 F.2d 364.
Finally, appellants contend that the court erred in excluding the opinion evidence offered by appellants as to the age of the insured, and insist that this evidence should have been admitted, thereby raising a question of fact which should have been submitted to the jury.
When a rough approximation of the age of a person is sufficient for the purpose of a particular inquiry, so that, for instance, a variation of five to ten years from the true age would not be material, it is the general practice in the interest of time and economy of effort to allow witnesses to answer to the age as a matter of opinion; and even when the very nearly exact age is the subject under investigation, opinion evidence is admissible, under the rule of necessity, when no better and no higher class of evidence is practicably obtainable in the particular case.
But it is a matter of common knowledge derived from observation and experience that there is nothing more uncertain and undependable than the attempt to fix the exact age of a person by his appearance and conduct, particularly when the proferred opinions are based upon the appearances of the person after he has reached middle age, and, too, when the person was of foreign birth, as is the case here. State v. Koettgen, 89 N.J. Law, 678, 99 A. 400. So that when the very nearly exact age of the person is the issue, as in this case, the best proof of the fact must be produced, if practically possible to procure.
The authorities seem to be in general accord that the best proof of age is the testimony of living witnesses who were present at the birth and distinctly remember the event, or who, although not present, yet were so situated as to have positive knowledge and remembrance of the date thereof. The authorities are fairly in agreement, also, that of equal, or very nearly equal, dependability are the definite statements or declarations of the person whose age is in question, made by him during his lifetime on solemn occasions when it was his bounden duty to speak the truth, and when there was no motive or occasion, actual or supposed, on his part to speak other than the truth. The authorities do not seem to be so well in accord as to the probative value of an official birth certificate, although they do generally hold that such a certificate is of a higher grade of evidence than mere opinions.
Since the higher or better class or grade of evidence as to the exact age of the insured was procured and introduced in this care, so that the necessity for recourse to opinion evidence was eliminated from the investigation, the opinions based upon mere observation were inadmissible. Necessity, in a general sense, lies at the foundation of the opinion rule, and when the necessity for opinions no longer exists, opinions are ordinarily no longer admissible, 1 Elliott Ev., p. 797, 3 Jones Com. Ev. (2 Ed.), p. 2344, 22 C.J., p. 498, section 594, and authorities under note 87, except as to mere loose approximations wherein the rule of convenience and economy of time and effort prevails.
Affirmed.