Rehearing
Denied Oct. 2, 1934
Reversed
on Mandate Jan. 22, 1935
Rehearing
Denied Feb. 26, 1935
Affirmed
after Mandate Nov. 5, 1935
Rehearing
Denied Jan. 14, 1936
Appeal
from Circuit Court, Calhoun County; W.B. Merrill, Judge.
Action
on a policy of insurance by John T. Box against the
Metropolitan Life Insurance Company. From a judgment for
defendant, plaintiff appeals.
Reversed
and remanded.
Certiorari
granted by Supreme Court in (7 Div. 273) 168 So. 216.
Certiorari
granted in (7 Div. 317) 168 So. 217.
Certiorari
denied in (7 Div. 369) 168 So. 220.
Alleged
error in exclusion of evidence held not reversible where
even if evidence had been admitted, insured would still lack
a scintilla of evidence to support essential averment that
insurer denied liability on sole ground that insured was not
totally and permanently disabled.
Defendant's plea in abatement is as follows:
"Comes
the defendant in the above entitled suit and for plea in
abatement to the said cause of action says as follows
viz.: That the policy sued on recites as follows, viz
'Any employee insured under this plan who shall become
wholly and permanently disabled while in our employ before
reaching the age of 60, either by accidental injury or
disease, and is thereby permanently, continuously and
wholly prevented from pursuing any and all gainful
occupation, will be regarded as a claimant by the
Metropolitan Life Insurance Company. Six months after the
receipt of due proof of such disablement, the Insurance
Company will begin making payments of the amount of
insurance under any one of the following plans at the
option of the person insured.'
"That
the first proof that the plaintiff sent in to the defendant
of his permanent, continuous and whole disability was
received by the Company, the said defendant, on the 5th day
of May, 1933, that the plaintiff filed this suit against
the defendant on the 26th day of May, 1933, when the first
installment would not be due until November 5th, 1933, that
the said suit was prematurely brought, hence the defendant
asks that the same be abated.
"And
defendant further avers that it has not denied liability on
the said certificate and policy sued on, before the said
suit."
Plaintiff
filed these replications to said plea:
"1.
It is shown in the complaint that before the beginning of
this suit defendant denied liability under this claim upon
the sole ground of its contention that plaintiff was not
permanently and totally disabled as in the complaint alleged
and it thereby waived the right to delay suit, if such it
had, under the policy provision quoted in said plea.
"2.
For that the policy provision quoted in said plea, to-wit:
'Six months after the receipt of due proof of such
disablement the Insurance Company will begin making payments
of the amount of the insurance under any one of the following
plans at the option of the insured,' presents no cause
for an abatement of this suit, for to-wit: The object of this
provision is to give defendant
an opportunity to investigate the claim upon its denial of
liability, such as defendant is shown in the complaint to
have made, it impliedly admits ample investigating time and
the denial operates as an invitation to sue without further
delay.
"3.
For that said plea in abatement is no answer to the suit
because it is shown in the complaint that defendant denied
liability on the contention that defendant was not afflicted
with total disability and, in making this denial on the one
ground, it waived all others, including the right to set up
in abatement, the said policy provision ***.
"4.
For that the policy provision set up in said plea in
abatement *** cannot operate as an abatement of this suit and
for reason that under its terms, it makes no provision for
the delay of suit, applying only to payments and under count
one of the complaint judgment could be rendered and payment delayed in accordance with the terms of the
policy.
"5.
For that the policy provision in said plea *** cannot operate
in abatement of this suit, for, to-wit: Count one claiming
installments in the regular order of payment, shows that
defendant denied liability on the contention that plaintiff
was not permanently and totally disabled, which plaintiff
here avers was the sole ground upon which said denial was
based, and he avers that in such denial, defendant waived all
other grounds of defense, including the policy provision
herein quoted.
"6.
For that the policy provision in said plea, *** cannot
operate as an abatement of this suit for to-wit: Count one of
the complaint shows that defendant denied liability upon the
contention that plaintiff was not permanently and totally
disabled, which plaintiff here avers was the sole ground upon
which said denial was based, and in said count it is alleged
that, in this course defendant waived the right to delay
payment of any part thereof.
"7.
For that the policy provision in said plea *** cannot operate
as an abatement of this suit for to-wit: Count three of the
complaint shows that defendant denied liability upon the
contention that plaintiff was not permanently and totally
disabled, which plaintiff here avers was the sole ground upon
which said denial was based, and in said count it is alleged
that, in this course defendant waived the right to delay
payment of any part thereof, but, with reduction to the
extent of the interest on the several installment payments
for the period of time payment of said installments is made
in advance of the maturing time provided in said policy, and,
as and for a rate making basis, he elects to and does take
the option right of five annual installments of $214.00 each.
"8.
Plaintiff avers that said plea cannot operate as an abatement
of this suit, for to-wit: Before the bringing of this suit it
denied liability under this claim upon the sole ground of its
contention that plaintiff was not permanently and totally
disabled, which operated as a challenge for plaintiff to
abandon the claim or sue; that he then brought this suit,
incurred expense and trouble in so doing and defendant is
therefore estopped from setting up plea in abatement of the
suit which its action invited and caused.
Replication
9 is the same as No. 5, but with the following additional
averments: "And plaintiff avers further that, if he is
mistaken in his claim in said count one that under the terms
of the policy, certain of the installment payments are due as
therein alleged, then he waives and withdraws that portion of
said count alleging that certain installment payments of said
policy are due and here makes claim for full amount to be
paid through installments in accordance with the terms and
provisions of said policy. He further avers that said six
months provision, as set up in said plea is specifically
applied to the time when payments shall begin, makes no
reference to suit. He, therefore, avers that, when defendant
denied liability on the sole ground, as herein alleged, it
opened the way for and authorized suit for determination of
the rights of the parties. He avers that, as shown in said
count, defendant denied liability May 24, 1933, having then
completed its investigation, and he therefore claims the full
amount, with first installment payment to begin six months
from that date."
"11.
For that the provision of policy in suit and quoted in plea
in abatement *** does not present a valid ground for
abatement of this suit, for to-wit: That after plaintiff had
sent defendant notice of his disability and claim for
compensation under the policy in suit, defendant undertook an
investigation on its own account, and after some
correspondence with his attorney about said claim defendant
did on or about May 15th, 1933, in connection with this claim
and in reference thereto, wrote the attorney for plaintiff a
letter which carried statement: 'This acknowledges
your communication of May 3, and enclosure. We have
thoroughly investigated your client's claim, and we are
unable to allow indemnity. We are informed by the former
employer, that he was employed by them from about April 9,
1922, up until June 13, 1931. During May, 1931, the Anniston
Manufacturing Company made a survey of their labor
utilization and a new program was put into effect on June 15,
1931. This involved the consolidation and elimination of
various jobs in their plant, one of which was held by your
client, John Box. That he was not in first class physical
condition. Had his job not been eliminated, he would have in
all probability, performed his work in the customary manner
subsequent to June 15th, 1931.' That on May 18th, 1933,
the attorney for plaintiff answered the letter of defendant
in words, to-wit: *** 'I have your letter declining
payment of this claim. I note you base it on
the absence of disability June 15, 1931. If conceded that Mr.
Box left his work because of the elimination of his job, that
would not eliminate his claim. Sometimes poverty forces a
disabled man to keep at the wheel. We are prepared to show
that Mr. Box was on that date permanently and totally
disabled, within the meaning of his contract. If your
decision is final, an answer to this letter will not be
necessary. If I am not further advised by May 25th, I will on
that date file suit. ***'
"That
defendant answered this letter of the 18th to-wit *** 'We
have your May 18 letter. May we inform you the medical
evidence on hand does not permit the allowance of claim under
the terms of the Group Contract, but we are willing and ready
to consider any additional medical proof you may care to
submit. ***'
"And
plaintiff avers that in this action by defendant it waived
the right, if such it...