Aetna Life Ins. Co. v. Howell

• Decision Date: 05 February 1908
• Parties: ÆTNA LIFE INS. CO. v. HOWELL.
• Court: Kentucky Court of Appeals

107 S.W. 294

ÆTNA LIFE INS. CO. v. HOWELL.

Court of Appeals of Kentucky.

February 5, 1908

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Action by I. B. Howell against the Ætna Life Insurance Company on an insurance policy. From a judgment for plaintiff, defendant appeals. Affirmed.

Wheeler Hughes & Berry, for appellant.

Flournoy & Reed, for appellee.

NUNN J.

This appeal is from a judgment for $210.65 in favor of appellee who instituted the action upon an insurance policy issued by appellant, by which it agreed and promised to pay appellee the sum of $25 per week indemnity in the event he was disabled by sickness from performing any or all duties pertaining to his profession (dentistry) during the term of the policy, and also agreed and promised to pay him the sum of $100 in the event he had to have a surgical operation performed in the nature of laparatomy. He alleged that he was struck with an illness known as "appendicitis," and that in the treatment he was operated upon by a surgeon, who opened the abdominal cavity and removed his appendix, and by reason of his illness he was totally disabled from performing the duties of his profession for a period of four weeks and three days. He further stated that the operation was performed on the 18th day of May 1906, within two days after he was stricken with this illness, and the operation was necessary in the proper treatment thereof. He also alleged that on the 18th day of June, 1906, he made out and delivered to appellant full proof of loss, showing the sum due him on the policy; that appellant had received the proof of loss, but had failed and refused to pay him the money due under the policy, and denied liability thereon. Appellee instituted this action on the 6th day of August, 1906, and within 90 days from the date the proof of loss was presented to appellant. On the 29th day of October, 1906, appellant filed a plea in abatement, in which it alleged that by one of the provisions of the policy sued on it was agreed between the parties thereto that, in the event any claim in favor of appellee against appellant should arise under the conditions of the policy, no legal proceedings for recovery should be brought within 90 days after the receipt of the proof of claim in the office of the company in Hartford, Conn.; that by reason of this clause in the contract appellee's claim did not mature, and no right to sue existed at the time of the institution of the action. A demurrer was sustained to this plea, and on the 31st day of October, 1906, it filed an amended plea in abatement, and, in addition to alleging matters of the same nature as alleged in the first plea, denied that it had refused to pay appellee the amount claimed by him, and denied that it had denied its liability therefor. The court sustained a demurrer to this amended plea, and on the next day thereafter, to wit, the 1st day of November, 1906, it filed its answer to the petition, in which it denied all liability on the policy by reason of fraud perpetrated by appellee in obtaining the policy.

The first ground relied on for reversal by appellant's counsel is that the lower court erred in sustaining the demurrers to its pleas in abatement. It will be noticed that these pleas were filed by it more than 120 days after the amount of the policy was due to appellee, if it was due him, and filed when it had more than 90 days in which to investigate and determine whether or not it had any real defense to appellee's action, and there was not a suggestion in the pleas as to what had been the result of its investigation. It did not intimate whether the policy was valid or invalid. It only claimed that it had been sued too soon, which was a fact, if appellant had not repudiated liability on the policy. If appellant, in its pleas, had admitted liability on the policy and denied that it ever had refused to pay the amount due, the court should have, and would no doubt have, made appellee pay the cost of the action; but the court did not err in refusing to sustain these pleas when it was evident that they were dilatory. This court has often decided that the payee of a policy is not required to wait the full time given in the policy before bringing action, when the company repudiates its liability. The very moment that is done the right to institute the action accrues.

Appellant by its answer, denied the affirmative allegations in the petition, and then alleged in the second paragraph as follows: "The defendant, further answering, says that the said policy of insurance was issued by this defendant to the plaintiff upon an application made by the plaintiff to it therefor on the 18th day of April, 1906, and that in said application, which was agreed to be made and became a part of the contract of insurance, it was expressly agreed that said application was based upon the statement of facts made by the plaintiff therein, and which statements the plaintiff warranted to be true, and that the plaintiff in said application, and as one of the facts which he warranted to be true, stated as follows: 'I have not now nor have I had during the past year any local or constitutional disease except as herein stated. No exceptions.' And that said application containing said statement was by the parties to the contract of insurance agreed to be made, and was, a part of the said contract. Now the defendant says that during the year immediately preceding the 18th day of April, 1906, the plaintiff had suffered an attack of appendicitis and had been treated therefor, which is both a local and constitutional disease, and that the plaintiff...