Aetna Life Ins. Co. v. Thomas

• Decision Date: 20 February 1933
• Docket Number: 30153
• Citation: 166 Miss. 53,144 So. 50
• Court: Mississippi Supreme Court
• Parties: AETNA LIFE INS. CO. v. THOMAS

144 So. 50

166 Miss. 53

AETNA LIFE INS. CO. v. THOMAS

No. 30153

Supreme Court of Mississippi

February 20, 1933

(Division A.)

1 INSURANCE.

Whether insured was disabled before reaching age of sixty and thus entitled to total permanent total disability insurance held for jury.

2 EVIDENCE. Notice to insurer at home office to produce letter written to it at general agency held sufficient to make secondary evidence competent.

Notice was addressed to life insurance company or its attorneys of record and notified them to produce upon trial of a case a certain letter to life insurance company on date mentioned to its general agency claiming total disability and compensation, and that, unless letter was produced, secondary evidence would be offered, and was signed by attorneys for insured.

3. APPEAL AND ERROR.

Sufficiency of notice to produce written instrument is preliminary fact question for trial court, whose determination will not be disturbed unless improper and injury is shown.

4 INSURANCE.

Insured could not recover premiums voluntarily paid on ground that he was entitled to waiver of payment because of disability.

ON SUGGESTION OF ERROR.

(Division A.eb. 20, 1933.

[146 So. 134. o. 30153.]

Division A

October 31, 1932

APPEAL from circuit court of Jones county, HON. W. J. PACK, Judge.

Action by Cap Thomas against the AEtna Life Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed and modified.

On suggestion of error. Suggestion of error overruled.

For original opinion, see 144 So. 50.

Affirmed and modified; judgment entered here. Suggestion of error will be overruled.

Welch Cooper, of Laurel, for appellant.

Collins Collins, of Laurel, for appellee.

Brief of counsel not found.

Argued orally by W. S. Welch, for appellant, and Jeff Collins, for appellee.

McGowen J., Smith, C. J., delivered the opinion of the court on Suggestion of Error.

OPINION

McGowen, J.

In an action at law on a life insurance contract containing a total permanent disability clause, the appellee recovered judgment against the appellant insurance company, and it prosecutes an appeal here.

The declaration demanded judgment for benefits on account of the total and permanent disability of the insured at ten dollars per month from April 1, 1928, amounting to four hundred dollars, and in addition thereto the sum of one hundred four dollars, representing two premiums paid by the appellee on the policy which became due during the period of his alleged permanent disability.

To the declaration the insurance company pleaded the general issue, and gave notice thereunder that appellee was engaged in a gainful occupation for a portion of the time before he was sixty years of age, and that the alleged permanent disability occurred after he was sixty years of age; that no satisfactory notice, appellant claimed, of permanent disability, had ever been received by it at its home office; and, further, that the premiums paid by appellee, after his injury, were voluntarily paid by him, he having been engaged in gainful occupation during the period he was liable for the premiums paid.

The following provisions of the policy were involved in the lawsuit:

"If the insured becomes totally and permanently disabled and is prevented from performing any work or conducting any business for compensation or profit, or has met with the irrecoverable loss of the entire sight of both eyes, or the total and permanent loss by removal or disease of both hands or of both feet, or of such loss of one hand and one foot, and satisfactory evidence of such disability is received at the Home Office of the Company the Company will, if there has been no default in the payment of premiums, waive the payment of all premiums falling due during such disability after the receipt of such proof;

"If such disability existed before the insured attained the age of sixty years, the Company will pay to the life beneficiary the sum of ten dollars for each one thousand dollars of the sum insured and will pay the same sum on the same day of every month thereafter during the lifetime and the continuance of such disability of the insured, the first payment to become due on receipt at said Home Office of satisfactory evidence of such disability;

"If before attaining the age of sixty years the insured becomes totally disabled by bodily injuries or disease and is thereby prevented from performing any work or conducting any business for compensation or profit for a period of ninety consecutive days, then if satisfactory evidence has not been previously furnished that such disability is permanent, such disability shall be presumed to be permanent within the meaning of this provision;

"Provided, however, no benefit will be paid or allowed hereunder for disability arising while engaged in military or naval service in time of war.

"The foregoing benefits for disability are conditioned upon satisfactory evidence being furnished the Company when requested of the continuance of the total disability of the insured and upon the representatives of the Company being permitted to examine the insured at any time, provided such evidence or examination shall not be required oftener than once a year after the expiration of two years from the acceptance of such proof, and if it shall appear to the Company that the insured is able to perform any work or conduct any business for compensation or profit after a claim has been allowed, then disability benefits shall immediately cease and the policy will continue under its original conditions as if no disability had been incurred."

The facts necessary to be stated here are that the contract of insurance was entered into in 1922. Cap Thomas became sixty years of age on October 12, 1928. After the suit was brought, in some manner, the appellant, on October 12, 1931, was served with the following notice:

"To AEtna Life Insurance Company or Welch and

Cooper His Attorneys of Record for Defendant.

"You will please produce upon trial of this case a certain letter written to the AEtna Life Insurance Company of Hartford, Connecticut, on the 1st day of April, 1928, claiming total disability and compensation unless same is produced secondary evidence thereof will be offered.

"COLLINS & COLLINS,

"Attorneys for Plaintiff.

"Filed October 12, 1931

"A. S. Jackson, Clerk."

On the trial, pursuant to said notice, appellee demanded the letter, to which demand counsel for appellant responded orally that the appellant had no such letter; whereupon the court permitted secondary evidence of the mailing thereof and of its contents to the effect that, on April 1st, appellee had mailed, postage prepaid, notice of his claim to permanent disability benefits, addressed to the AEtna Life Insurance Company, at Memphis, Tenn., to which he had received no written response, but that a week or two later an agent of the company visited him and he disclosed all the facts of his disability to this representative. He further testified that his correspondence in connection with his policy prior and subsequent to the above notice of disability had been with Mr. Searles, the general manager of this company, at Memphis, Tenn.

There was strenuous objection to the introduction of this secondary evidence; and this is the main point argued here.

Thomas had injuries prior to February, 1928, but claimed that in March, 1928, he had fallen from a house and had broken his ribs, which injury totally incapacitated him to do manual labor, he being a carpenter by trade. He claimed, at the time of the hearing, that he was blind, and had been so during the period for which he claimed the benefits; that he was practically in the same condition at the time of the trial that he had been on and after the time of the injury above mentioned; that he had attempted at times to work, but was unable to do so; and that he did not work. Appellee's physician testified that he had been permanently disabled since he had broken his ribs in the spring of 1928.

Appellant company offered evidence to the effect that Thomas had been engaged in his usual vocation as a carpenter during the period for which he was suing. Its evidence also tended to show that appellant had never received any kind of notice until a letter was written to it in March, 1930, in which appellee made claim for disability benefits and for waiver of premiums at a time when he was more than sixty years of age. Upon investigation pursuant to that letter, which appellant claimed was the only letter ever written it, payment of premiums for a time was waived, but later appellant's agreement to waive the payment of premiums was canceled.

1. On the contention of appellant that it was entitled to a peremptory instruction, we have sufficiently stated the facts to show that there was a sharp conflict, which was properly submitted to the jury.

2. It is insisted that the notice served on appellant to produce a letter written by the appellee to it in April, 1928, addressed to the AEtna Life Insurance Company, at Hartford, Conn., was not sufficient notice to require the appellant to produce a letter written to it at Memphis, Tenn., and that the secondary evidence pursuant to that notice was therefore incompetent.

In the first place, the policy of insurance shows that the corporation is styled "AEtna Life Insurance Company of Hartford, Connecticut." The notice was to produce a letter written to the AEtna Life Insurance Company of Hartford, Conn., and not at Hartford, Conn., as alleged in the brief of counsel. The notice, fairly interpreted, was to the appellant, requiring it to produce any letter received by it making claim for disability benefit. It clearly appears from this record that...