Coplin v. Woodmen of the World

delivered the opinion of the court.

Appellant brought suit against appellee to recover, as beneficiary, the amount of an insurance policy, or certificate, issued by appellee on the life of William E. Copeland. When appellant had introduced all of his testimony and rested his case, appellee, defendant in the court below, presented the following motion:

“The defendant moves the court to exclude the testi-money offered by the plaintiff in this case, because the insured, William E. Copeland, in his application to the company, warranted all his answers contained in the application to be true, and that, if they were not true, any policy issued on that application would be void, and that in said application be warranted his name to be William E. Copeland, whereas the truth of the matter is that his name was Edward Olfess Coplin; because in his application he warranted he was born on December 5, 1883, whereas the truth of the matter is he was born December 5, 1871; because in his application he states that he had two brothers living and three brothers dead, whereas truth of the matter is he had five brothers dead, and stated he had three sisters dead, and whereas the truth of the matter is he had four sisters dead, or more than the number set out in the application; and because of the fact that the party, William E. Copeland, who made application, was not a brother of J. Solomon Coplin, the plaintiff in this case.”

From the action of the lower court in sustaining the motion and instruction the jury to find for defendant, the appellant prosecutes this appeal.

The policy of insurance, or beneficiary certificate, was issued to William E. Copeland on September 16, 1908, and was made payable at his death to his brother, J. Solomon Copeland. In July, 1909, insured was killed in the state of Kentucky, and his remains were buried at Crump, Tennessee. It seems that the amount of the certificate was paid to a man who fraudulently claimed *128to be the beneficiary, and tbat after considerable tronble, and tbrongb the assistance of the brothers of the insured, appellee recovered tbe same. It appears tbat the insured was an illiterate man, and tbat be left bis parents and bis borne wben a mere lad, and bad but little association with any of bis family. Tbe testimony of tbe brothers of tbe insured, Lee Maryland Coplin and J. Solomon Coplin, contains sufficient statements of family history and the relationship between them and tbe insured to authorize tbe jury to find tbat tbe insured and tbe beneficiary were brothers, as stated in tbe insurance certificate, or policy.

Appellee, in its motion to exclude tbe testimony, asserts tbat tbe application for tbe policy contained erroneous and untrue statements (1) as to tbe name of tbe insured; (2) as to bis age; and (3) as to tbe number of bis brothers and sisters, and their deaths.

Tbe application, it appears from tbe bandwriting thereof, was not written by tbe insured. Tbe answers relative to bis ancestors and bis brothers and sisters were' written by tbe examining physician. Tbe answers show tbat be knew nothing of any of bis ancestors back of bis father and mother, and opposite tbe questions relative to bis brothers and sisters we find written by tbe physician tbe words “Don’t know,” and “Don’t know any of their ages when they died. ’ ’ Following tbe certificate by tbe physician is tbe following written by him: “This applicant don’t seem to know much of bis family; says be has been away from home for years. But I find him to be a strong, healthy man.” We do not see, from tbe application and from tbe testimony in tbe record, anything to show tbat tbe insured made a misstatement or omission in answering tbe questions in the application with any purpose or attempt to willfully or knowingly deceive tbe appellee.

We find tbe following statement of law on this subject in 25 Oyc. 801: “But so far as tbe questions pro*129pounded in the application call for answers founded upon the knowledge or belief of the applicant, a misstatement or omission to answer will not avoid the policy, unless willfully and knowingly made with an attempt to deceive.” And touching the materiality of misrepresentations in applications, we quote from the same volume, on page 805, the following: “Misrepresentations defeat a policy so far, and only so far, as they are material to the contract; and representation is material in such sense when knowledge of the truth as to the fact misstated might reasonably influence the company in determining whether or not to enter into the contract as made. ’ ’

In the case of Insurance Co. v. Miazza, 93 Miss. 18, 46 South. 817, 136 Am. St. Rep. 534, Judge Mayes, delivering the opinion of the court, said: “We are not prepared to hold that a stipulation in the contract of insurance of the character above quoted will have the effect of making every statement made or contained in an application of insurance material to the risk, thus avoiding the contract, whether such statement be in fact material. This would seem to have beén held in the case of Cooperative Life Association v. Leflore, 53 Miss. 1; hut an examination of the facts shows that.in that case the facts misstated were material. Courts are not given to avoiding contracts for misrepresentations of an immaterial nature, and to adopt this rule in its application to contracts of insurance, merely" because it is stated in the contract that any misstatement should be deemed material, can subserve no purpose of right.”

In Cooley’s Briefs on the Law of Insurance, vol. 3, page 1952, is the statement that “it is a well-established rule that, to avoid the policy on the ground that there has been a misrepresentation, the false statement must be of some fact material to the risk.” Mr. Joyce, in his work on Insurance, vol. 2, section 1884, referring to misrepresentations, says that the statements must be made with intent to deceive, or must be statements of some-*130tiling as positively true, without being known to be true, and at tbe same time having a tendency to mislead or deceive, in both cases relating to material facts. In Mr. Cooley’s Briefs on tbe Law of Insurance, vol. 3, page 1958, be says: “Where tbe statements constituting tbe representations are qualified by tbe recital that they are made to tbe best knowledge and belief of tbe applicant, bis knowledge and good faith are determining factors as to tbe effect on tbe policy, if such statements are false.”

It is plain that appellee and its agent were clearly informed that tbe applicant bad little knowledge about bis family history. Certainly appellee could not have considered tbe information given in tbe answers to tbe questions as full and definite. Such information was very meager indeed; besides, it will be noted that tbe examining physician in bis report informed appellee that tbe applicant did not know much of bis family, and that be said be bad been absent from them for years.

Now, as to tbe erroneous statement that bis name was William E. Copeland, tbe testimony shows that be was also called Edward Olfess Coplin, and also William Edward Olfess Coplin. A Bible was introduced in evidence. It is shown that this Bible belonged to Lee M. Coplin, and was given to him by bis. mother July 23, 1884. Tbe Bible was published by tbe American Publishing Company of New York City, in 1879. Tbe first entries in it are made in the same bandwriting, in pale purple ink. It shows tbe birth of tbe father, Jefferson Coplin, in 1828. It is shown that these entries were not made by tbe parents of tbe insured and tbe appellant, because they were illiterate and could not write. Considering tbe dates mentioned and tbe physical appearance of tbe entries in tbe Bible, together with the testimony in tbe case, we believe that only limited weight should be given to tbe entries therein. The entry under bead of “Births” shows that Edward Olfess Coplin was born December 5, 1871. We note that tbe surname of *131the family is spelled in the Bible entries “Coplin,” as well as “Copelin.” In the application itself the name is spelled in two different ways — “Copeland” and ‘‘ Copland. ’ ’

However, if the testimony shows that William E. Copeland, the insured, was the same as Edward Olfess Coplin, who was the brother of appellant, there is no reversible error in this case arising from any misstatement or name. “A name is a word to designate a person or thing. That word by which a person is commonly designated in the community in which he lives is, for all practical purposes, his name.” Miller v. George, 30 S. C. 526, 9 S. E. 659. At common law tie office of a name was merely to identify. “Since the time of the Norman Conquest, a legal name has consisted of one Christian or given name, and of one surname, patronyonic, or family name. The surname or family name of a person is that which is derived from the common name of his parents, or is borne by him in common with other members of his family. The Christian name is that which is given one after his birth, or at baptism, or is afterwards assumed by him, in addition to his family name.” Schaffer v. Levenson Wrecking Co., 82 N. J. Law, 61, 81 Atl. 434.

In Snook’s Petition, 2 Hilt. (N. Y.) 566, it was said that a man’s name is the mark by which he is distinguished from other men. At common law a man could change his name, in good faith, and for an honest purpose, and adopt a new one, by which he could be generally recognized. In the case of Smith v. U. S. Casualty Co., 197 N. Y. 420, 90 N. E. 947, 26 L. R. A. (N. S.) 1167, 18 Ann. Cas. 701, it was decided that the fact that an applicant for accident insurance signs his adopted name in stating his name in accordance with the requirements of the application does not constitute a breach of warranty, where the name so given was one which he had adopted some year before making the application, and was the one by which he was known and under which he generally did business.

*132There are many cases of persons who have been prominent in the world’s history who have changed their names at 'some time during their lives, or have been known by more than one name. This practice has been so common, and the cases so numerous, that we do not deem it necessary to mention any for illustration. In 29 Gyc. 271, we find the following: “It is a custom for persons to bear the surname of their parents, but it is not obligatory. A man may lawfully change his name without resort to legal proceedings, and for all purposes the name thus assumed will constitute his legal name, just as much as if he had borne it from birth. ’ ’ And on the same subject 21 Am. & Eng. Ency. of Law (2 Ed.), 311, states: “At common law a man may lawfully change his name, or by general usage or habit acquire another name than that originally borne by him, and this without the intervention of either the sovereign, the courts, or Parliament; and the common law, unless changed by statute, of course obtains in the United States. ’ ’

It will be easily seen that because of the illiteracy of the insured, and that of his parents, and perhaps other members of his family, the surname was spelled in the different ways; and for the same reason we may understand that his given or Christian name varied.

Answering the objection as to the misstatement by insured of his age in his application, it is provided in sec-' tion 2676 of the Code of 1906 that any misstatement of age in any policy, certificate, or contract of life insurance shall not invalidate the same; but in such cases the"' beneficiary shall only recover such amount as the premiums paid would have purchased for at the insured’s actual age, reckoning according to the rate tables of the company.

For the reasons already shown, we do not believe that the policy should be held void because of any error made by the applicant in the statements relative to the number of his brothers and sisters and their deaths.

*133We believe that the case should have been submitted to the jury on the question as to whether the insured and the beneficiary were brothers.

Reversed and remanded.