Miller v. Phenix Insurance

Mississippi Supreme Court

Miller v. Phenix Insurance

61 So. 983, 105 Miss. 4

DecidedMarch 15, 1913

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This text of 61 So. 983 (Miller v. Phenix Insurance) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. Phenix Insurance, 61 So. 983, 105 Miss. 4 (Mich. 1913).

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Opinion

Cook, J.,

delivered the opinion of the court.

Hpon a former appeal to this court, by appellant, this case was reversed and remanded, because appellant was [5]*5not permitted to testify to facts going to show that a failure to disclose the existence of two deeds of trust on the insured property was not a concealment or misrepresentation of material fact, within the meaning of the policy of insurance. 100 Miss. 311, 56 South. 449.

When the case was retried in the circuit conrt, the conrt again exclnded the testimony of appellant, and directed a verdict for the defendant insurance company. We think this was error. The evidence shows that appellant, the owner of the property, did not make application for the insurance not disclosed when the present policy was written; that the prior insurance was written at the request of the holder of the deeds of trust, and no representations of any kind were made by him; that the two deeds of trust upon the property in question were written by a lawyer, since deceased. Appellant testified that he did not know the property which is the subject of this suit was embraced in the trust deed, and it was not his intention that same should be included. The evidence of the intention of the holder of the indebtedness secured by the trust deeds is negative. It seems that the security and the preparation of the trust deeds was left entirely to the lawyer, since deceased.

We think the bona fides of the insured should have been left to the decision of the jury. We are unable to agree with appellee that this court has decided the point involved adversely to the contention of appellant. The case nearest in point, which has come to our attention, is American Insurance Company v. Mahone, 56 Miss. 192. In that case, the conrt inferentially decides against appellee, and while the precise point was not before the court, we think the reasoning is in line with the great weight of authority.

Concealment and misrepresentation, generally speaking, are affirmative acts, and while it is undoubtedly true that mere silence may often he tantamount to concealment, or misrepresentation, yet this is a question of [6]*6fact. It does not follow that a mere failure to speak is ipso facto a concealment; this depends upon the facts of the particular case. Elliott on Insurance, 80; Daniels v. Hudson River Co., 12 Cush. (Mass.) 416, 59 Am. Dec. 192.

The question of fact should he left to the decision of .the jury. If there is evidence of fraud, or if the appellant in honesty and good faith should have known and disclosed the facts, are questions of fact for the arbitrament of the jury. Aetna Insurance Co. v. Miller, 113 Md. 686, 78 Atl. 483; Sussex County Mut. Ins. Co. v. Woodruff, 26 N. J. Law, 541.

Reversed and remanded.

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Cook, J.,

delivered the opinion of the court.

Hpon a former appeal to this court, by appellant, this case was reversed and remanded, because appellant was [5]*5not permitted to testify to facts going to show that a failure to disclose the existence of two deeds of trust on the insured property was not a concealment or misrepresentation of material fact, within the meaning of the policy of insurance. 100 Miss. 311, 56 South. 449.

When the case was retried in the circuit conrt, the conrt again exclnded the testimony of appellant, and directed a verdict for the defendant insurance company. We think this was error. The evidence shows that appellant, the owner of the property, did not make application for the insurance not disclosed when the present policy was written; that the prior insurance was written at the request of the holder of the deeds of trust, and no representations of any kind were made by him; that the two deeds of trust upon the property in question were written by a lawyer, since deceased. Appellant testified that he did not know the property which is the subject of this suit was embraced in the trust deed, and it was not his intention that same should be included. The evidence of the intention of the holder of the indebtedness secured by the trust deeds is negative. It seems that the security and the preparation of the trust deeds was left entirely to the lawyer, since deceased.

We think the bona fides of the insured should have been left to the decision of the jury. We are unable to agree with appellee that this court has decided the point involved adversely to the contention of appellant. The case nearest in point, which has come to our attention, is American Insurance Company v. Mahone, 56 Miss. 192. In that case, the conrt inferentially decides against appellee, and while the precise point was not before the court, we think the reasoning is in line with the great weight of authority.

Concealment and misrepresentation, generally speaking, are affirmative acts, and while it is undoubtedly true that mere silence may often he tantamount to concealment, or misrepresentation, yet this is a question of [6]*6fact. It does not follow that a mere failure to speak is ipso facto a concealment; this depends upon the facts of the particular case. Elliott on Insurance, 80; Daniels v. Hudson River Co., 12 Cush. (Mass.) 416, 59 Am. Dec. 192.

The question of fact should he left to the decision of .the jury. If there is evidence of fraud, or if the appellant in honesty and good faith should have known and disclosed the facts, are questions of fact for the arbitrament of the jury. Aetna Insurance Co. v. Miller, 113 Md. 686, 78 Atl. 483; Sussex County Mut. Ins. Co. v. Woodruff, 26 N. J. Law, 541.

Reversed and remanded.

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61 So. 983, 105 Miss. 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-phenix-insurance-miss-1913.

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