Aetna Life Ins. Co. v. Roberts

• Decision Date: 25 November 1935
• Docket Number: 31898
• Citation: 164 So. 311,174 Miss. 278
• Court: Mississippi Supreme Court
• Parties: AETNA LIFE INS. CO. v. ROBERTS

164 So. 311

174 Miss. 278

AETNA LIFE INS. CO. v. ROBERTS

No. 31898

Supreme Court of Mississippi

November 25, 1935

(Division B. Nov. 25, 1935. Suggestion of Error Overruled)

Division B

Suggestion Of Error Overruled January 6, 1936

1 INSURANCE.

Under life policy waiving payment of premiums if insured became totally and permanently disabled before default and providing for certain benefits for such disability, but precluding recovery of benefits for a period greater than six months prior to proof of disability where proof was not received within ninety days after commencement of disability insurer, held not relieved of liability where disability commenced before default in payment of premiums but insured failed to furnish notice thereof until more than two years thereafter, since policy by its terms did not require proof of disability within any given period.

2 INSURANCE.

Letters written by insured informing insurer that he was active tubercular, and inquiring as to his rights under disability clause of life policy on which premiums were unpaid, held sufficient proof of disability where insurer denied liability and did not demand proof in any form.

3. INSURANCE.

Evidence held to sustain finding that insured, who was active tubercular, was totally and permanently disabled at time of lapse of life policy containing disability clause.

4. INSURANCE.

Life policy providing that premiums falling due during disability occurring before default in payment of premiums would be waived held not to require existence of disability at time insured paid last premium, but only at time for payment of first unpaid premium to entitle insured to disability benefits.

5. INSURANCE.

Tuberculosis in active stage constitutes "total and permanent disability," within disability clause of life policy.

APPEAL from the circuit court of Lincoln county HON. J. F. GUYNES, Judge.

Action by John M. Roberts against the AEtna Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Watkins & Eager, of Jackson, and Brady, Dean & Brady, of Brookhaven, for appellant.

The policy sued on must be construed like any other contract so as to give meaning to the entire contract and the intention of the parties.

Southern Home Ins. Co. v. Wall, 156 Miss. 865, 127 So. 298; Georgia Cas. Co. v. Cotton Mill Prod. Co., 132 So. 73, 159 Miss. 369; New Amsterdam Cas. Co. v. Perryman, 140 So. 73, 162 Miss. 864; Home Mut. Fire Ins. Co. v. Pittman, 71 So. 739, 111 Miss. 420; Germania Life Ins. Co. v. Bouldin, 66 So. 609, 100 Miss. 660.

The policy sued on is clear and unambiguous and the permanent and total disability benefits only accrue during the six months immediately preceding the furnishing of the home office with satisfactory evidence of permanent disability, and where a premium was not paid, the fact that the insured was then disabled would not keep the policy from lapsing where no proof thereof is furnished the home office within the succeeding six months.

New York Life Ins. Co. v. Statham, 93 U.S. 24, 23 L.Ed. 789; Klein v. New York Life Ins. Co., 104 U.S. 88, 26 L.Ed. 662; Pilot Life Ins. Co. v. Owen, C. C. A. 4, 31 F.2d 862; New York Life Ins. Co. v. Alexander, 122 Miss. 813, 85 So. 93; Bergholm v. Peoria Life Ins. Co., 284 U.S. 487, 76 L.Ed. 147; Owen v. Mutual Life Ins. Co., 64 F.2d 561; Berry v. Lamar Life Ins. Co., 142 So. 445, 165 Miss. 405.

Even where no time is named in the policy within which proof must be furnished, nevertheless it must be furnished within a reasonable time.

Bergholm v. Peoria Life Ins. Co., 284 U.S. 487, 76 L.Ed. 417; Bank v. Northwestern Ins. Co., 26 S.W.2d 135.

Similar contracts have been frequently construed favorable to contention of appellant.

Western & Southern Life Ins. Co. v. Robertson, 72 S.W.2d 718; Fauer v. Aetna Life Ins. Co., 70 F.2d 693; Aetna Life Ins. Co. v. Davis, 60 S.W. 912.

The two letters written by the appellee to appellant in February and March, 1932, do not constitute proof of disability, and appellant's denial of liability upon receipt thereof could not possibly be construed as a waiver of proof.

New York Life Ins. Co. v. Quinn, 157 So. 902; Equitable Life Assur. Society v. Dorriety, 157 So. 59; Campbell Paint & Varnish Co. v. Hall, 131 Miss. 671, 95 So. 641; Mutual Life Ins. Co. of N. Y. v. Hebron, 146 So. 445; Bank Saving Life Ins. Co. v. Milan, 70 S.W.2d 294.

Section 2294 of the Mississippi Code of 1930 has no application in this case.

Berry v. Lamar Life Ins. Co., 142 So. 445; Webster v. United States F. & G. Co., 153 So. 159; Mutual Life Ins. Co. v. Hebron, 146 So. 445.

The appellee failed to meet the burden of proving by preponderance of the evidence that he was totally and permanently disabled at the time of the lapse of this policy for nonpayment of premium or for three months prior thereto.

Appellee must offer substantial evidence of total and permanent disability at the time the policy lapsed and evidence of his condition after the lapse of the policy is immaterial, and proof of partial disability at the time of the lapse of the policy does not warrant recovery even though total disability may subsequently result.

Lumbra v. United States, 78 L.Ed. 492, 290 U.S. 550; United States v. Timmons, 68 F.2d 654; White v. United States, 53 F.2d 565; McLaughlin v. United States, 53 F.2d 450; Eggen v. United States, 58 F.2d 616; United States v. Diehl, 62 F.2d 343; Wise v. United States, 63 F.2d 307; United States v. Clapp, 63 F.2d 793; United States v. Cole, 45 F.2d 339.

Mere proof that appellee had tuberculosis prior to the lapse of the policy falls far short of being proof that appellee was then totally and permanently disabled.

Nicolay v. United States, 51 F.2d 170; United States v. Harrison, 49 F.2d 227; Long v. United States, 59 F.2d 602; United States v. Linkhart, 64 F. 747; United States v. Diehl, 62 F.2d 343; Eggen v. United States, 58 F.2d 626.

Long delay in bringing suit on a policy is strong evidence that appellee was not totally and permanently dis abled at the time of the lapse of the policy for nonpayment of premium.

United States v. Linkhart, 64 F.2d 747; Lumbra v. United States, 78 L.Ed. 494, 290 U.S. 550; United States v. Hairston, 55 F.2d 825; Wise v. United States, 63 F.2d 307; Eggen v. United States, 58 F.2d 616; United States v. Cole, 45 F.2d 339.

Robertson, Campbell & Robertson, of Jackson, E. B. Sauls, Jr., of Brookhaven, and H. J. Patterson, of Monticello, for appellee.

Policies of life insurance covering total permanent disability are of two general classes.

Class one: Those policies which distinctly provide that if while the contract is in full force and before default in payment of premiums the insured shall furnish proof satisfactory to the company that he has become totally and permanently disabled, the company will waive premiums falling due after the time of the furnishing of said proof and will make income payments, the first of which shall be made at a specified time after the time of the furnishing of the proof.

This class of policies does not insure against total permanent disability at all, but expressly insures against the furnishing to the company, before default in payment of premiums, of evidence or proof of total permanent disability theretofore sustained.

New York Life Ins. Co. v. Quin, 157 So. 902; New York Life Ins. Co. v. Alexander, 851 So. 95; Berry v. Lamar Life Ins. Co., 142 So. 445; New York Life Ins. Co. v. Hebron, 146 So. 445; Bergholm v. Peoria Life Ins. Co., 284 U.S. 487, 76 L.Ed. 417; New York Life Ins. Co. v. Moose, 78 S.W.2d 64.

The second class of life insurance policies covering total permanent disability is either so written as to clearly provide that the waiver shall be of premiums falling due after the onset of disability, and that the income payments shall be made with reference to that date, or else is written so that the courts may say that their meaning is uncertain and give to them the construction more favorable to the insured, which results from the fact of the commencement of the disability, rather than the furnishing of proof thereof being taken as the critical date.

These policies insure not against the furnishing to the company of evidence or proof of total permanent disability, but on the contrary insure against the happening of total permanent disability. The time of furnishing of proof is not of the essence of the contract and proof is not required to be furnished at all, or is required to be furnished not in order for a cause of action to arise, but in order to mature the first installment.

Minnesota Mutual Life Ins. Co. v. Marshall, 26 F.2d 977, 279 U.S. 852, 73 L.Ed. 994; Kimel v. Missouri State Life Ins. Co., 71 F.2d 921; Aetna Life Ins. Co. v. Davis, 60 S.W.2d 912; Missouri State Life Ins. Co. v. Case, 71 S.W.2d 203; Horn, Admr., v. Prudential Life Ins. Co., 65 S.W.2d 1017; U. S. v. Ranes, 49 F.2d 582; U. S. v. Meyer, 76 F.2d 355; 33 C. J., page 14, sec. 661.

The court may direct a verdict for one party only when evidence favorable to the other, conceding it to be true, discloses no legal right in him, or fails to maintain the issues in his favor. The court may direct a verdict for defendant only when plaintiff's proof is so unreasonable and contradictory that it cannot be reasonably accepted as true.

Newton v. Homochitto Lumber Co., 138 So. 564, 162 Miss. 20; Miss. Power & Light Co. v. Smith, 153 So. 376, 169 Miss. 447.

The Federal War Risk Insurance cases relied upon by the appellant as sustaining its contention that the evidence on behalf of appellee to establish his total permanent disability on August 25, 1929, was insufficient to support the verdict of the jury, are easily distinguished and are not controlling...