Fidelity Mutual Life Insurance v. Elmore

Insurance. Avoidance of policy. Statements as to health. Under a policy of insurance providing that all statements of the insured shall, in the absence of fraud, be deemed representations and not warranties; on the death of the insured the company cannot successfully resist the payment of the policy on the ground that the insured in his application and when the policy was delivered, stated that he was in good health if such statements were made in good faith and believed to be true, and with no intention to commit a fraud, even though at the time of the application and delivery of the policy, the insured had tuberculosis and his death was subsequently caused by this disease.

Appeal from the circuit court of Grenada county. Hon. J. A. Teat, Judge. Suit by L. R. Elmore, administrator, against the Fidelity Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. The facts are fully stated in the opinion of the court. We plank this case squarely upon two propositions, both of which are admitted to be true: First, the deceased at the date of the delivery of the policy was not in good health. This voids the policy absolutely, or rather by reason of this fact, the policy never had any legal effect — ' the applicant being in good health was a condition precedent to the validity of the policy. This is true according to all of the authorities, and must follow from the rule laid down by this court in Fidelity Mutual Life Insurance Company v. Miazsa, 93 Miss. 18, and also from the recent opinion of this court in Col. K. P. v. Seay, 63 So. 571, the question of good or bad faith, the question as to knowledge or want of knowledge upon the part of the appellant or the company, has nothing whatever to do with the question. The sole question is — was the applicant at the date of the delivery of the policy in good health? If not, then by the express terms of the policy,, it was void ab initio nothing can breathe into this worthless and dead thing the breath of life. In order for the plaintiff to recover, he can recover not upon the policy sued on, but upon one which the court makes for him. The courts do not make contracts, but simply enforce them. Second, if the applicant at the date of the application made a false statement, which was material to the risk, although he believed the statement to be true, then the policy is void. This is squarely settled by this court in the Miazza case, supra, and is in accord with the great weight of authority. The above are the two propositions upon which we seek a reversal. Appellant relies upon the following authorities: Fidelity Mutual Life Ins. Co. v. Miazza, 93 Miss. 18; 'Grand Lodge Col. K. of P. v. Seay, 63 So. 571; Fidelity Mutual Life Ins. Co. v. Miazza, 93 Miss. 422; Co,-op>. Association v. Leflore, 53 Miss. 185; Preivitt v. State, 63 So. 330, Judicial notice; Notes to Green v. Lmeville Drug Co., 124 Am. St. Eep. 44, et seq.; Austin v. Mutual Reserve Fund Life Assn. (Mass.), 132 Fed. 555; Carmichael v. John Hancock Mutual Life Ins. Co., 166 App. Div. 291, 101 N. T. Supp. 602; Metropolitan Life Ins. Co. v. Howie, 62 Ohio St. 204, 56 N. E. 908; Packard v. Mut. Life Ins. Co., 72 N. H. 1, 54 Atl. 287; Mutual Reserve Fund Life Assn. v. Opp, 30 So. 69; Lee v. Prudential Ins. Co., 203 Mass. 290; Powell v. PrudentialLife Ins. Co. (Ala.), 45 So. 208i; Gallant v. Metropolitan Life Ins. Co., 167 Mass. 77, 44 N. E. 1073; New York Life Ins. Co. v. Odom, 100 Miss. 219; Slocum v. Ins. Co., 228 U. S. 364; Aetna Ins. Co. v,. Mount, 90 Miss. 642 ; 25 Cyc. 805-806, 810-811-812; Knights of Maccabees v. Shields, 49 L. E. A. (N .S.) 853, 157 Ky. 35., 162 S. W. 778. In our preceding brief, replying to counsel’s contention that ‘ ‘ If the applicant made a false statement, which was material to the risk, although he believed the statement to be true, then the policy is void,” we pointed out that this contention begged the whole question. We hold to our views there expressed, and insist upon their soundness, but even if it be conceded that the contention is not thus fatally defective, still, there is no practical gain. The whole argument is a misfit. It ignores the only thing to be noticed P. the written contract between the parties, the terms and provisions of the policy itself. The law of the contract is the contract itself, and the policy in suit expressly provides: “ALL STATEMENTS MADE BY THE INSURED SHALL IN THE; ABSENCE OF FRAUD, BE DEEMED REPRESENTATIONS AND NOT WARRANTIES,” • This identical provision was construed by this court in Citizens Nat. Life Ins. Co. v. Swords, 681 So. 920, where counsel for the appellant company made exactly the same argument as is now being pressed. As to the second point in this case, we respectfully submit that the reply brief of counsel is not even responsive. It does not pretend to answer the very material proposition that the term “continued good health” is a relative term, depending for its precise meaning on the circumstances of its use. It does not pretend to answer our argument as to what those circumstances were. It does not pretend to answer the proposition that the effect which the applicant’s health, before and at the time he made his application, and his statement relative thereto, are expressly provided for by other provisions; and to construe the clause in question so as to extend it bach over that time would necessarily make those stipulations mere surplusagu. Instead, the brief falls back on the lame statement that “there are two things wrong with counsel’s argument on this point. The first is that it is unsound, and the second is that the courts are against him.” Not a single case is cited in support of this statement. Not a single case cited in their original brief supports it. What the courts may have held to be the effect of a provision requiring delivery during’ “good health” is entirely beside the question. The policy in suit does not require this. It calls merely for delivery during “continued good health;” and the importance, in this connection, between “good health” and “continued good health” is obvious and unquestionable. “Good health” may or may not mean a freedom from serious ailment, but “continued good health” manifestly does not stipulate for anything, except a continuation of a state of health that has previous or elsewhere been considered or passed as “good.” Its object here was obviously to enforce a delivery of the policy to the same man who applied for it. Yet, as important as this difference between the two terms is, both briefs of counsel for appellant completely ignore it; cases are cited in their brief on the meaning of the former, only without an explanation or attempt to reconcile the two. And so it is throughout the brief. Our brief, we submit, stands unanswered on every material point.