Opinion
No. 35948.
January 14, 1946. Suggestion of Error Overruled January 28, 1946.
1. INSURANCE.
Where action on life policy was defended on ground that insured had tuberculosis on date policy was issued, and that insured died of tuberculosis within 12 months from such date, whether insured died of tuberculosis within such period in which event recovery would have been limited to fourth of amount of face of policy, was for the jury under the evidence.
2. INSURANCE.
Where a life policy lapses and insured procures revival on representation of good health at all times since issuance of original policy, good health of insured at time original policy was issued is open without regard to the warranties contained in the original application.
3. INSURANCE.
Any representations contained in second application for revival of lapsed life policy are competent though not attached to the new policy as required of original policies by the Code (Code 1942. sec. 5684).
4. INSURANCE.
Acceptance of premiums by insurer does not estop insurer from setting up defense based on ill health of the insured in absence of proof of knowledge of insured's condition.
APPEAL from the circuit court of Adams county, HON. R.E. BENNETT, Judge.
Brandon, Brandon Hornsby, of Natchez, for appellant.
The court erred in refusing to sustain the appellant's motion to strike the evidence of the plaintiff and direct a verdict for the defendant, which motion was made when the plaintiff rested his case in chief. Under the contract document it was required that the beneficiary, upon the death of the insured, present to the insurance company due proof of death. This being true, it was required of the plaintiff in a suit on the policy to show that he had so done. The plaintiff did not offer his proof of death in evidence before resting his case. Having thus failed in the presentation of his case to so do, the defendant was entitled to the directed verdict for which it moved. Be that as it may. In truth, a proof of death had been by the plaintiff presented to the defendant insurance company; and, upon cross-examination, that proof of death had been exhibited to the plaintiff while he was on the witness stand and he had admitted the execution and presentation of the same and further had admitted the presentation to the insurance company of the proof of death — Form B, made out by the attending physician. Such being so and those proofs of death being in the record as exhibits to the defensive pleadings, and it being before the court that the insured had died of tuberculosis within one year of the date of the issuance of the policy, and the amount of premiums and costs having been tendered and paid in court before the motion for directed verdict was made by the defendant, the defendant was entitled to the directed verdict for which it moved.
The court erred in excluding from evidence the application made by the insured for reinstatement of the policy after it had lapsed for non-payment of premium. The court apparently acted upon the theory that inasmuch as the application for reinstatement had not been attached to the policy of insurance or a copy thereof had not been shown to have been transmitted to the insured, same was inadmissible in evidence.
See Metropolitan Life Ins. Co. v. Scott, 160 Miss. 537, 134 So. 159; Walker v. Acacia Mutual Life Ins. Co., 178 Miss. 395, 173 So. 453.
The court, furthermore, seems to have proceeded upon the theory that inasmuch as it was not shown that the original application for insurance had been attached to the original policy as required by the statutes of Mississippi, that no evidence could be admitted as to the condition of health of the insured at and prior to the date of issuance of the policy. The court was in error in thus excluding this evidence.
National Life Accident Ins. Co. v. Green, 191 Miss. 581, 2 So.2d 838, 3 So.2d 812, 136 A.L.R. 1510.
The court erred in sustaining the plaintiff's motion to exclude the evidence of the defendant and instruct the jury to return a verdict for the plaintiff; in so instructing the jury for the plaintiff; in not affording defendant the right and opportunity to submit proper instructions on its own behalf; and in rendering the judgment herein rendered for the plaintiff; same being contrary to the law, the evidence and the contract of insurance.
Under the most favorable construction of the record in this case the plaintiff could have been awarded no more than one-fourth of the face amount of the policy.
The plaintiff's recovery should have been limited to the amount of the premiums paid on the policy (tendered into court) and costs.
Joseph E. Brown, of Natchez, for appellee.
The tender back of the premium after the commencement of trial on the action upon the policy, is too late to render any broken condition a defense to the action.
Mechanics' Traders' Ins. Co. v. Smith, 79 Miss. 142, 30 So. 362.
The tender was bad and should have been by the court rejected, in that the attempted tender was made conditional by its terms.
Maris v. Lindsay, 134 Miss. 339, 99 So. 130; Mississippi Power Light Co. v. Ross, 168 Miss. 400, 150 So. 830.
There is no lawful evidence in this record that the insured had ever had tuberculosis or any pulmonary disease within two years prior to the issuance of the policy and there is no evidence that the insured died of tuberculosis.
The court properly excluded both the original application and the application for the alleged reinstatetment of the policy for non-payment of premiums. The undisputed testimony was that the policy could not lawfully have lapsed for non-payment of premiums. The appellee repeatedly testified that he had kept the premiums paid as required, that the first policy had, with his other papers, been destroyed by fire when the office of his car washing establishment burned, and that they thought they were applying for a duplicate policy. The appellant made an abortive effort to prove non-payment of premiums but this testimony was inadmissible because it was hearsay. The appellant did not produce the agent who was collecting premiums at the time of the alleged lapse in February, 1944. It did produce its superintendent, H.I. Hardy, who undertook to testify from the transfer ledger sheet, called a "lapse sheet," that there appeared entries showing non-payment of premiums. It appeared, however, that this ledger sheet was made up from the book of original entry, that is to say the collection book, and that the collection book was probably available and at the Natchez office, but that he had made no search for it. The appellant made no effort to produce the book of original entry, nor to show that he had made a search for the book of original entry, the collection book, and was unable to find it. An objection was made to the hearsay testimony of the witness, Hardy, relative to non-payment of premiums and this objection was by the court below properly sustained.
The directed verdict granted the plaintiff was proper.
Suit at law was brought against the Insurance Company upon a policy of life insurance in the sum of $400 written upon the life of appellee's wife. From a peremptory instruction in favor of the plaintiff, the company appeals.
The pertinent provisions of the policy are as follows: Liability of the insurer is limited to a return of the premiums paid, provided, "(1) if before the date hereof the insured . . . has been attended by a physician for any serious disease or complaint or before said date has had any pulmonary disease . . .," unless there has been a formal waiver. Also "in event of the death of the Insured within the first twelve (12) months from the date of the Policy, due directly or indirectly to . . . pulmonary disease . . . the liability of the Company shall be limited to one fourth (1/4) of the Amount of Insurance stipulated in the Schedule on the face of the Policy."
Defense was grounded upon the fact of tuberculosis upon the date the policy was issued and upon the fact that insured died of that disease within twelve months from such date. It is not disputed that the policy was dated April 26, 1943, and that insured died March 19, 1944.
The testimony shows that insured was attended and treated many times between October 1942 and the date of her death. The attending physician was allowed to testify to such fact but not the nature of her illness nor the cause of her death. However, his Proof of Death, required by the policy, showed she died of tuberculosis. The plaintiff denied that he knew the cause of her death but admitted that "I guess she died of tuberculosis." His Proof of Death, likewise required by the contract, stated that she died from such disease. While he denied that he had so stated and that he could not write, the company's agent, Hardy, testified that plaintiff so told him and that the answers to the questions in the Proof of Death furnished by plaintiff were filled in according to the latter's answers, and was signed by plaintiff's mark duly witnessed.
In view of the long continued treatment and the improbability, if not impossibility, that insured contracted the disease after Christmas 1943 and died therefrom March 19, 1944, as testified by plaintiff, supplemented by the testimony of Hardy and the averments in the Proof of Death, we are of the opinion that the learned trial judge was not warranted in directing a verdict for plaintiff. Under the present aspect of the case it was at least a jury issue whether she died of tuberculosis within the initial twelve months' period, in which event the recovery would have been limited to $100. Since such views require a reversal we need not elaborately examine the factual issue of lapse. The defendant undertook to show that the policy lapsed on February 7, 1944, for non-payment of premiums and was revived or re-instated upon application on February 14th. Plaintiff testified that all premiums had been paid. The denial of the defendant's witnesses was not supported by original records. Plaintiff insisted that there was no reinstatement but that the transaction involved the mere furnishing of a duplicate policy to supply a loss of the original through fire. The application for the new policy was upon a form styled "Revival Application" and the defendants testified to its identity as such.
Proof as to the existence of tuberculosis on the date of the policy was not sufficiently shown. The application for revival contained the usual representation that the applicant was then "in good health, free from all diseases . . . and since the issuance of the above described policy I have had no injuries, ailments or illnesses and have not been sick from any cause; that since the date of the issuance of said Policy I have not consulted or been prescribed for or attended by a physician or practitioner for any cause."
These considerations are mentioned since the issue of good health at the time the original policy was issued was open under the terms of the insurance contract without regard to the warranties under the original application. National Life Accident Ins. Co. v. Green, 191 Miss. 581, 2 So.2d 838, 3 So.2d 812, 136 A.L.R. 1510. If upon remand the representations in the second application, if shown to be in support of a revival after lapse, would be competent although not attached to the new policy as required of original policies by Section 5684, Code of 1942. Walker v. Acacia Mutual Life Ins. Co., 178 Miss. 395, 173 So. 453. In the instant case, the insured died before a second policy was delivered. The intimation that the insurer was estopped to set up its defense because of its acceptance of premiums, finds no support in this record especially since there is no showing that the insurer had knowledge of the insured's physical condition.
For the error in granting the plaintiff a peremptory instruction in view of the foregoing considerations, the cause must be remanded. The nature of the proof upon the issues, which may lead to any one of three results, is left open for development.
Reversed and remanded.