48 So. 1017 | Miss. | 1908
delivered the opinion of the court.
This case is before the court for the second time. On the first trial in the circuit court a peremptory instruction was given in favor of the appellee, mainly upon the ground that the insurance contract was to be construed according to the laws of Pennsylvania, in which state a misrepresentation will not avoid the policy, unless made with knowledge of the falsity of the representation. This court reversed the judgment, holding that the contract must be construed according to the laws of Mississippi, and that evidence tending to show that the representations were untrue was competent. It was further held that representations material to the contract have the force of warranties in Mississippi, but that representations in regard to immaterial matters will not defeat a recovery. Fidelity Mutual Life Ins. Co. v. Miazza, ante p. 18, 46 South. 817. Upon the remanding of 1lie case to the circuit court, it was tried anew, some additional evidence being introduced, and the issues were submitted to
It is insisted on behalf of the appellant that the court erred in. submitting’ to the jury the question of whether the alleged misrepresentations by the insured were or were not material. On the other hand, appellee insists that the law of the case was settled in the former opinion, and that certain language therein contained requires that the jury shall pass on the materiality of the testimony. That language is as follows: “The question should have gone to the jury to determine whether or not there had been any misrepresentation by Miazza, in his application-for insurance, of a matter material to the risk.” We do not think that this language can be so construed as to hold that it was in this case necessarily the province of the jury to pass upon the materiality of the testimony. The language merely holds that it was for the jury to say whether the misrepresentation shown to be material was in fact made by the assured. We think the language of the opinion leaves it as an open question whether or not the jury should have been given the right to decide as to the materiality of any particular misrepresentation. The appellant, on the other hand, insists that the former opinion strongly intimates, if it does not positively decide, that the case was one-for a peremptory instruction, unless the testimony of the Memphis physicians should be overthrown. They base this contention upon the following language used in the former opinion: “In this case it can hardly be doubted that, if there had been full disclosure on the part of Miazza as to the character of his illness in 1903, it might reasonably have influenced the company not to- make the contract of insurance.” And so, responding to what counsel conceived to be- the view of the court as thus expressed, the insurance company offered evidence to the effect that, if the chief medical examiner of the company had known all the facts testified to by the Memphis physicians, the policy would never 'have been issued. We think that this excerpt from the opinion does not indicate that the jury was without power to- hold that
Miazza, in making application to the company, and in his medical examination, and in his statement to the company’s local examiner, stated substantially that he had been sick in Memphis in the year 1903,; that he was at that time doing both day and night work, had insomnia and nervousness for two weeks, and was attended by Dr. J. 33. Stanley, and that he was troubled witb insomnia for three weeks. He further stated to Dr. Hunter, the company’s examining surgeon, that he had been treated in a sanatorium in Memphis. So far these statements were absolutely true. It appears, however, from the testimony of the physicians in Memphis, that this disorder was accompanied by acute dementia; that he was nervous and in a very anaemic condition, amounting to profound autointoxication. This malady, however, yielded to treatment, so that in four days Miazza was wholly restored to reason, and after discharge from the sanatorium was ultimately restored to what appeared to he perfect health. We are not able to say, as a matter of law, that the disclosure made by Miazza was not full and complete in any reasonable or substantial sense. The company was notified that he had an attack of insomnia and nervousness, necessitating the attendance of a physician and his confinement in a sanatorium; and the company must be charged witb knowl
In this sense it was not reversible error for tbe court to give an instruction tbat tbe jury should find for the plaintiff if they believed tbat the applicant had made no untrue statements, such as to constitute misrepresentations which were material to the risk. We are not to- be understood as holding that in all cases the question of the materiality of the misrepresentations should be submitted to tbe jury. We desire to carefully limit this opinion to the facts of this particular case. We only hold that where there has been a disclosure of tbis kind, setting out-in general terms tbe nature of the- malady, it becomes peculiarly a question of .fact for tbe jury as to -whether the applicant has sufficiently gone into details of his illness. Of course, many cases might he imagined, where there had been no disclosure as to a serious illness, in which a peremptory instruction for the insurance company would be proper; but it is erecting too difficult a standard to say that the'applicant iu every case must give a detailed history of the illness with which he was afflicted. Iu this case the insurance company was given instructions by
Affirmed.
