Aetna Life Ins. Co. v. Walley

• Decision Date: 04 November 1935
• Docket Number: 31827
• Citation: 164 So. 16,174 Miss. 365
• Court: Mississippi Supreme Court
• Parties: AETNA LIFE INS. CO. v. WALLEY

164 So. 16

174 Miss. 365

AETNA LIFE INS. CO. v. WALLEY

No. 31827

Supreme Court of Mississippi

November 4, 1935

Division A

1 INSURANCE.

Provisions of physician's liability policy requiring physician to give notice of claim for malpractice, to forward to insurer process served on physician, and to co-operate with insurer conferred valuable right on insurer, and compliance therewith was required unless waived or properly excused.

2 INSURANCE.

Delay in complying with requirements of physician's liability policy for notice of claim or suit for malpractice will be excused, where required notice was given in time to enable insurer to prepare its defense to asserted claim and it does not appear that insurer was prejudiced by delay.

3 INSURANCE.

Where failure to notify physician's liability insurer of suit for malpractice against physician, as policy required, until afternoon of day of trial precluded physician's recovery from insurer of amount of judgment for malpractice and expenses of defending suit.

4 INSURANCE.

Where failure to notify physician's liability insurer of suit against physician for malpractice was caused by physician's failure to keep policy, failure to remember name of insurer, and failure to earlier attempt ascertainment of insurer's identity, compliance with policy requirement for notice was not excused.

5. INSURANCE.

Provisions of physician's liability policy requiring physician to give notice of claim for malepractice, to forward to insurer process served on physician, and to co-operate with insurer held not violative of statute prohibiting contractual chances in statutory periods of limitation, since provisions related to conditions precedent to liability on policy (Code 1930, section 2294).

HON. V. J. STRICKER, Chancellor.

APPEAL from the chancery court of Hinds county HON. V. J. STRICKER, Chancellor.

Action by Dr. Willis Walley against the AEtna Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Watkins & Eager, of Jackson, for appellant.

The tort upon which the cause of action is based arose when the appellee was engaged in the performance of duties under a contract of employment, for which he was paid a stated salary, and, under the provisions of the policy contract sued on, no coverage exists in appellee's favor.

Where the terms of a policy contract are unambiguous, the court will give effect thereto and will not undertake to rewrite or change a policy the parties themselves have made.

Jackson Steam Laundry v. AEtna Casualty & Surety Co., 156 Miss. 649, 653, 126 So. 478; Miss. Baptist Hospital v. Moore, 156 Miss. 676, 126 So. 465, 67 A.L.R. 1106.

Appellee is bound by the terms and provisions of the policy contract.

Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 425, 71 So. 739; Mixon v. Sovereign Camp, W. O. W., 155 Miss. 841, 125 So. 413; Maryland Cas. Co. v. Adams, 159 Miss. 88, 96, 131 So. 544.

The question involved is not merely a forfeiture condition or provision of the policy contract sought to be avoided under an alleged waiver, but appellee seeks to extend the coverage of the contract to cover a claim not embodied within the terms and provisions of the policy contract.

Maryland Casualty Co. v. Adams, 159 Miss. 88, 95, 131 So. 544; Adams v. Maryland Casualty Co., 162 Miss. 237, 241, 139 So. 453.

Appellee having failed to give reasonable notice, as provided by the policy contract, with respect to the claim against him and the notice of suit and furnishing of summons, appellant was thereby relieved of all liability otherwise provided by the contract.

Downing v. Home Indemnity Co. of New York, 169 Miss. 13, 152 So. 841; Employers' Liability Assur. Corp. v. Jones County Lbr. Co., 111 Miss. 759, 72 So. 152; Southern States Fire Ins. Co. et al. v. Hand-Jordan Co., 112 Miss. 565, 73 So. 578; National Paper Box Co. v. AEtna Life Ins. Co., 170 Mo.App. 361, 156 S.W. 740; Fidelity & Deposit Co. v. Merchants & Marine Bank, 151 So. 373; 76 A.L.R. 183, 184.

It is not essential that there should be any provisions of forfeiture in order to give effect to a condition precedent respecting the giving of notice.

Downing v. Home Indemnity Co., 169 Miss. 13, 152 So. 841; Home Life & Ace. Co. v. Beckner, 168 Ark. 283, 270 S.W. 529.

Had the appellant assumed to defend or assisted in the defense of the case in the circuit court against the appellee after the appellee's refusal to sign the nonwaiver agreement, appellant's action would have constituted a waiver of its right to thereafter claim that it was not liable under the policy contract.

76 A.L.R. 173.

The failure of the appellee to give notice as required by the terms of the policy contract was the result of his own carelessness and negligence and not by reason of any act on the part of the appellant, and appellee cannot be heard to complain of the consequences of his own carelessness and neglect.

Deer Trail Consolidated Mining Co. v. Maryland Cas. Co., 36 Wash. 46, 67 L.R.A. 275, 78 P. 135.

The alleged telephone, conversation from Dr. Walley to somebody in Bradshaw & Hoover's office in December, 1933, or January, 1934, is insufficient to constitute any notice to appellant as required by the policy contract.

St. Paul Fire & Marine Ins. Co. v. McQuaid, 114 Miss. 430, 442, 75 So. 255.

Assuming, solely for the sake of the argument, that the policy contract extended coverage, appellee's action in advising Mrs. Wren's attorney of all denial of liability without the consent of the appellant, and without notice to the appellant, was a breach of the express conditions of the policy contract, relieving appellant of all liability.

L. C. Hallam, of Cleveland, and Hilton & Cox, of Jackson, for appellee.

The policy contract in issue covered the tort upon which this action is based.

By no reasonable rule of construction can appellant exclude the coverage of the tort action in question.

Chapter 89, Hemingway's Code of 1917; Sections 3945 and 3946, Hemingway's Code of 1917.

A production of the minutes of the board of trustees failed to show that the duties to be performed by the superintendent required him to treat or operate on patients and it was not one of the duties of the superintendent to perform operations and treat patients. His duties by statute and prescribed by the trustees were administrative in character. Any medical care or operation on patients were in his private professional character, which he was not required to do, nor prohibited by his employment from doing as his private enterprise. The clause in the contract exonerating appellant from liability when appellee is held liable for tort in performance of an act under contract becomes ambiguous because of the state of facts under which recovery is sought here; and ambiguity will be construed more favorably to appellee and against appellant.

U. S. F. & G. Co. v. Citizens' State Bank of Morehead, 150 Miss. 386, 116 So. 605; New Amsterdam Casualty Co. v. Perryman, 162 Miss. 864, 140 So. 342; Maryland Casualty Co. of Baltimore, Md. v. Beckham, 163 Miss. 836, 143 So. 886; Home Ins. Co. of New York v. Moore & Rawls, 151 Miss. 189, 117 So. 524; Ferguson v. Provident Life & Acc. Ins. Co., 170 Miss. 504, 155 So. 168.

All provisions of the policy are to be construed together so as to give effect to each, and that which gives greater indemnity to the insured will prevail if equally as reasonable.

Southern Home Ins. Co. v. Wall, 156 Miss. 865, 127 So. 298; 36 C. J., Liability Insurance, 1061; Restatement of the Law, sec. 235, page 326, subsection (h).

The appellant knew of appellee's official title and any exclusions under exception No. 2 insofar as the same conflicted with warranty No. 14, were thereby waived.

Restatement of the Law, sec. 236, page 327; Sutherland v. Fidelity & Casualty Co. of New York, 175. Pac. 187.

Under the circumstances appellee was excused from giving appellant notice.

The law does not require nor exact of the insured the impossible.

The facts and circumstances in this particular case disclosed that it was impossible for the insured to give the appellant notice, first because he did not know the name of the insurance company issuing the policy, and secondly, after due diligence and search, he was unable to find the policy.

Gifford v. New Amsterdam Cas. Co., 248 N.W. 235; 36 C. J. 1105, secs. 88 and 89; 33 C. J. 15.

Appellee exercised due diligence and made searches and investigations in attempt to locate policy and name of appellant.

Appellant's actions in making appellant's aid or assistance in the defense of appellee conditional upon a so-called nonwaiver agreement release appellee from any requirements of "immediate" notice provided in the policy.

Provident Life & Acc. Ins. Co. v. Jemison, 153 Miss. 60, 120 So. 836; Employers Liability Ins. Co. v. Jones County Lbr. Co., 111 Miss. 752, 72 So. 152; 36 C. J. 1113, sec. 104; 31 C. J. 441, sec. 39.

Where insurer, both before and after entering upon the defense of the action brought against the assured, notified the latter that in so doing it was acting under reservation of rights without waiver of its right to deny liability upon the ground of the latter's breach of condition requiring it to give "immediate" written notice of the accident, and then and at all times gave to the assured full opportunity to assume control of the defense if it did not accede to the reservation thus made, but the assured did not elect to assume control of the defense it (insurer) by conducting the defense of the action to trial and judgment did not thereby waive its rights based upon the assured's breach of the condition in question, or estop itself from then withdrawing from...