New York Life Ins. Co. v. Nessossis , 189 Miss. 414 ( 1940 )

The determinative point in this case revolves around the provisions of the policy which introduce the so-called surrender charge, a question which has been examined and re-examined by this Court in New York Life Ins. Co. v. Blaylock, 144 Miss. 541,110 So. 432; Lamar Life Ins. Co. v. Minor, 170 Miss. 223,154 So. 542; New York Life Ins. Co. v. Boling, 177 Miss. 172,169 So. 882, 111 A.L.R. 967; and Mutual Life Ins. Co. v. Nelson,184 Miss. 632, 184 So. 636, 186 So. 837. Appellant admits in its briefs that the policy provisions in the present case are identical with those in the Boling case, from which it follows that the decree here must be affirmed unless (1) we overrule the Boling case, or (2) distinguish or qualify it, because of the parol evidence in the present case, which we shall later mention.

It is not to be denied that there has been ample ground for differences in opinion upon the correctness of the decisions in the cited cases. The dissenting opinion in the Boling case discloses it as well as the dissent delivered along with the present opinion. But in the Boling case we called attention to the consideration that decisions on such a question should not be overruled because of the thousands of insurance policies written in this State since the publication of the decisions; for in such a situation it is the settled rule that prior decisions will not be overruled unless manifestly and undoubtedly wrong, and mischievous in operation and effect. Forest Product Mfg. Co. v. Buckley, 107 Miss. 897, 899, 66 So. 279; Childress v. State (Miss.), 195 So. 583. All that we are called on to say now as to the questioned decisions may be summarized by stating, as we do, that in our judgment they are neither manifestly or undoubtedly wrong, nor are they mischievous in operation or effect.

In Mutual Life Ins. Co. v. Nelson, supra [184 Miss. 632, 184 So. 639], there was pointed out the distinction between the provisions of the policy in that case wherein "the figures contained in the table [the table of surrender and loan values] represent the actual amounts available after deduction of the surrender charge," and those of the policy in the Boling case, which are the same as the case now before us, wherein the figures contained in the table are of "guaranteed cash surrender values," and which, as to the latter, we said in Lamar Life Ins. Co. v. Minor, supra, was not a fixation of definite and final figures, but was only a stipulation of minimum amounts.

It is insisted now, however, that because there is evidence in this case given by insurance experts, that in the insurance parlance of the inner circle of that business the terms "cash value" and "guaranteed cash surrender value" are understood to mean the same thing, we should hold that the present case comes under, and should end in the same result as in, the Nelson case. Appellee replies that there was evidence to the same effect in the Boling case as in the present case. But if the simple words "cash value," easily understood, mean the same thing as "guaranteed cash surrender value," why were the two extra words used in the language last quoted? The evident answer must be that it was because some favorable additional meaning was intended to be found by policy purchasers in, or to be understood by them because of, those additional words; and we have stated in the Minor and Nelson cases what that meaning is, as read by those who are not required to be specially versed in the insurance field. In construing insurance policies every word or phrase must be given meaning and effect if reasonably possible, and especially so when favorable to the insured — a rule which must be thrown overboard, as it seems to us, before it can be said that "cash value" and the phrase, with two additional words, "guaranteed cash surrender value" mean precisely the same.

The state of the law, as found in a careful examination of the many authorities dealing with the subject of the availability of parol evidence to explain the meaning, according to trade or business usage of particular terms or expressions in a contract, said to be capable of more than one meaning, may be summarized approximately as follows: When the parties to a contract are engaged in the same business or trade they are presumed to have knowledge of the trade significations of the terms employed in contracts appertaining to that business, and as between such parties the significations aforesaid may be shown by parol; but, as to those not affiliated with or engaged in such trade or business, the terms must be construed in their ordinary and popular sense in the light of all the surrounding factual circumstances, unless it be shown by proof that the opposite party had actual knowledge of the trade or business interpretation of the terms employed, or unless such terms, although of a special business or trade, were in such common use throughout the community and were so generally understood therein as having the meaning ascribed to them by the trade or business that knowledge thereof is to be fairly imputed to the party, and that he contracted in reference to it. See, for instance, the review of the subject in 4 Jones Com. Ev., Sections 1571-1595. Also 1 A.L.I. Restatement, Contracts, secs. 247, 248.

The proof here does not bring the case within a situation where, as against the insured, the terms in question shall be required to submit to a construction other than that supplied by the words when considered in their ordinary sense, which is to say, in the sense in which they would most likely have been popularly understood — and that interpretation we have given in the Minor and Nelson cases, as already mentioned.

The statute, Section 5171, Code 1930, definitely discloses the policy of the law of this State in the matter of the contents of insurance contracts. It requires that the terms of contracts of insurance shall be plainly expressed; and while it cannot be expected that all terms which might be denominated as technical shall be eliminated, nevertheless it can be expected and required that when through experience it has been learned that any particular joinder of words or phrases has caused repeated misunderstanding and litigation, these words or phrases shall be discontinued and those of a plainer meaning inserted in lieu thereof. There is no such a dearth in our language that this may not be done. The money which purchases and maintains life insurance is generally hard earned, and is often out of meager incomes. Who is insured, for how much for how long should be made as plain and certain as within human capacity, so that the insured shall have insurance and not lawsuits.

We therefore repeat, as applicable here, what was said in Columbian Mut. Life Ins. Co. v. Craft (Miss.), 185 So. 225, 227, as follows: "As respects a feature wherein there is no practical difficulty in making the language plain and free from doubt, we are in accord with the remark found in Turner v. Fidelity, etc., Co., 112 Mich. 425, 70 N.W. 898, 38 L.R.A. 529, 67 Am. St. Rep. 428, that a policy or certificate of insurance ``should be framed with such deliberate care that no form or expression by which, on the one hand, the party assured can be caught, or by which, on the other, the company can be cheated, should be found on the face of it;' (page 899) and the only effective way to foster that result is to construe any doubtful provision against the company . . . which prepared and put forth the policy."

The conclusion is that we decline to overrule any of the cases herein cited, and we decline to distinguish or qualify the Boling case.

Affirmed.