Mutual Reserve Fund Life Ass'n v. Ogletree

Woods, O. T., delivered the opinion of the court. If the evidence of William Ogletree was competent and credible, the decree of the court below must be affirmed. That it was competent is well settled by the adjudications of this court. We refer to one only. In the case of Planters’ Insurance Co. v. Myers, 55 Miss., 479, the court said: “We adopt the doctrine of those cases which hold that, if the agent takes charge of the preparation of the application, or suggests or advises what shall be answered, or what will be a sufficient ansiver, the company shall not avoid the policy because they arc false or untrue, if full disclosures were made by the applicant to him.” See the opinion of the court, delivered by Sim-rall, O. J., and also the concurring opinion of Chalmers, J., in that case, in which he qualifies his former opinion in Cooperative Association v. Leflore, 53 Miss., 1. The evidence of William Ogletree shows that the insured did state to the medical examiner of the insurer that Dr. Bickley had prescribed for him for a temporary bilious ailment, and the medical examiner in his evidence more than once states that he has no recollection of such answer having been made at the time of the examination by the applicant for insurance. But to put the matter beyond controversy, the [14] medical examiner, on cross-examination, was asked tbis question, viz.: “When you say that you do not remember that Ogletree (the applicant) made any statement about being’ prescribed for by Dr. Bickley, do you mean to say positively that no such explanation was mad.e, or do-you simply mean that you do not remember ?” To which he replied: “I mean to say that I do not remember any such statement.” While it is true that the medical examiner afterwards testified that if such statement, as to Dr. Bickley’s prescribing for the applicant, had been made, he would have written it in the application, yet he frankly admits that he did not write all that the applicant said to him in answering questions propounded to him, but only the substance of the answers — the substance, of course, according to the conception of the examiner, and not according to the conception of the applicant. The truth is, the applicant had escaped doctors and drugs for thirty-five years, with the insignificant exception of the prescription given him oh a social visit at Dr. Bickley’s private residence, for a temporary ailment, and repeated five days later at the suggestion of Dr. Bickley, when the applicant happened to meet the doctor on the street. This temporary ailment had readily yielded to the prescription, and the applicant had been restored to his usual good health, and when Dr. Mooney, the medical examiner, made a careful examination of the applicant, he failed to find any evidence of that, or any other ailment, and Dr. Mooney declares that while it was possible that he might have failed to discover the alleged engorgement of the applicant’s liver on his careful examination, it was not; probable. Indeed, so fine a risk was the applicant, that the medical examiner recommended that a policy for $10,000 be issued, if desired by the applicant, though he only wished $4,000. The evidence of William Ogletree was both competent and credible. All the evidence demonstrates that at the time the application was made, and for very many years anterior thereto, the applicant was a sober, energetic, active man, and possessed [15] of good health in an eminent degree. To permit the insurer to escape liability because of a most technical objection as to the want of fullness of the answer made in the application, in not showing that Dr. Bicldey had prescribed for the applicant, under the circumstances referred to by us, and especially when that obection is unfounded, if William Ogletree is to be believed, would, it seems to us, sacrifice right and justice. Affirmed.