Berry v. Lamar Life Ins. Co.

• Decision Date: 13 February 1933
• Docket Number: 30006
• Court: Mississippi Supreme Court
• Parties: BERRY v. LAMAR LIFE INS. CO

142 So. 445

145 So. 887, 165 Miss. 405

BERRY v. LAMAR LIFE INS. CO

No. 30006

Supreme Court of Mississippi

February 13, 1933

Division B

June 6 1932

APPEAL from circuit court of Simpson county.

HON. E M. LANE, Judge.

Action by Missouri W. Berry against the Lamar Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed.

ON SUGGESTION OF ERROR.

On suggestion of error. Judgment affirmed.

For former opinion, see 142 So. 445.

Affirmed. Affirmed.

W. D Hilton, of Mendenhall, and J. Morgan Stevens, of Jackson, for appellant.

The prior Mississippi case of New York Life Insurance Company v. Alexander, 122 Miss. 813, 85 So. 93 stands in the pathway of appellant in this cause, and unless overruled or modified rules the case at bar.

Stipulation, in insurance policy, requiring insured claiming to be totally disabled within total disability clause to furnish company due proof of total disability, should be read with an exception reasonably saving right of assured from forfeiture, unless clearly negatived, when due to no fault of his own he is totally incapacitated from giving such notice.

Rhyne v. Jefferson Standard Life Ins. Co., 196 N.C. 717, 199 N.C. 419, 154 S.E. 749.

Filing proofs of disability is not a condition precedent to attaching of liability where insured became insane and was incapable of furnishing proof.

Nelson v. Jefferson Standard Life Insurance Company, 199 N.C. 443, 154 S.E. 752; Swann v. Atlantic Life Insurance Company, 159 S.E. 192; Levan v. Metropolitan. Life Insurance Company, 136 S.E. 304; Minnesota, etc., Insurance Company v. Marshall, 29 F.2d 977; Bank of Commerce and Trust Company v. Northwestern Insurance Company, 26 S.W.2d 135; Pfeiffer v. Missouri State Life Insurance Company, 174 Ark. 793, 297 S.W. 847, 54 L.R.A. 600; Marti v. Midwest Life Ins. Co., 108 Neb. 845, 199 N.W. 388, 29 A.L.R. 1507; Old Colony Life Insurance Company v. Julian, 175 Ark. 359, 299 S.W. 366; 54 A.L.R. 611; 27 L.R.A. (N.S.) 919; 18 L.R.A. (N.S.) 109; 14 L.R.A. (N.S.) 503; Ann. Cas. 1914D 413; 14 Ann. Cas. 294.

Where the circumstances of an accident are such that it is impossible to comply with the provisions in an accident policy as to the giving of notice within a certain time, the failure to give a notice does not bar a recovery.

14 R. C. L., par. 504, 1333.

Where the beneficiary in a policy of insurance is ignorant either of the death of the insured or the existence of the policy, delay in giving the notice and making proofs is excused.

Metropolitan Life Insurance Company v. Peoples' Trust Co., 177 Ind. 578, 98 N.E. 513, 41 L.R.A. (N.S.) 285; Trippe v. Provident Fund Soc., 140 N.Y. 23, 35 N.E. 316, 37 A. S. R. 529, 22 L.R.A. 432; Munz v. Standard Life, etc., Ins. Co., 26 Utah 69, 72 P. 182, 99 A. S. R. 830, 62 L.R.A. 485; 18 L.R.A. (N.S.) 109; Cady v. Fidelity, etc., Co. of New York, 134 Wis. 322, 113 N.W. 967, 17 L.R.A. (N.S.) 260; 41 L.R.A. (N.S.) 287; Ann. Cas. 1914D 414.

A provision requiring a notice on pain of forfeiture will not be construed to require strict performance, when by a plain act of God it is made impossible of performance.

Valisano v. Continental Insurance Company, 254 Mich. 122, 235 N.W. 868.

The general rule with reference to giving notice under an accident policy is that failure to comply with the terms of the policy will be excused by the incapacity or inability of the assured to give such notice.

Employers' Liability Assurance Corp. v. Roehm, 124 N.E. 223, 7 A.L.R. 182; Cantrell v. Great American Casualty Co., 256 Ill.App. 47; Walker v. Amsterdam Casualty Co., 154 S.E. 221; Ward v. Standard Accident Ins. Co., 30 F. 328; London Guaranty, etc., Co. v. Leefson, 37 F.2d 488; Haskell v. Eagle Indemnity Co., 144 S.E. 298; Caldwell v. Tenn. Life, etc., Co., 144 S.E. 678: Southern Surety Co. v. Heybrun, 234 Ky. 739, 29 S.W.2d 6; Mewborn v. Employers, etc., Co., 198 N.C. 156, 150 S.E. 887; 54 A.L.R. 611.

Even though the defendant had provided in the policy contract that the assured must give notice of total and permanent disability within a certain period of time, say sixty or ninety days, such provision would be contrary to section 2294, Code of 1930.

Standard Accident Insurance Company v. Broom, 111 Miss. 409, 71 So. 653; General Accident v. Walker, 99 Miss. 404, 55 So. 52; Dodson v. Western Union Teleg. Co., 97 Miss. --; I. C. R. R. Co. v. Jordan, 66 So. --; Standard Life & Accident Co. v. Fisher, 80 So. 347; National Casualty Company v. Mitchell, 138 So. 808.

It could not have been in the contemplation of the parties that if the insured, who was required to give notice, was unable to do so by reason of the very accident against which indemnity was given, he should therefrom lose such indemnity through no fault of his own.

Missouri State Life Ins. Co. v. Le Fevre, 10 S.W. 267.

In reply to the suggestion that the insured who, being insane, failed to file proof of loss within the time limit stated in the policy, could not recover, it was said that such a proposition is too repugnant to justice and humanity to merit serious consideration.

Hirsch-Fauth Furniture Co. v. Continental Ins. Co., 21 F. 216, 219; Hartford Fire Ins. Co. v. Doll, 23 F. 443 444, 56 A.L.R. 1059; Rhyne v. Jefferson Standard Life Ins. Co. (N. C., 1930), 154 S.E. 749; Woodmen Accident Assn. v. Pratt, 62 Neb. 673, 87 N. W, 546, 647, 55 L.R.A. 291, 89 Am. St. Rep. 777.

Green, Green & Jackson, of Jackson, for appellant, as Amicus Curiae.

Provision of the policy seeking to subvert the right of appellant accruing upon the total disability is contrary to Section 2294, Code of 1930 and void.

National Casualty Co. v. Mitchell, 138 So. 808; Southern Express Co. v. Hunnicutt, 54 Miss. 566; Clements v. Telegraph Co., 77 Miss. 750; Hartzog v. Telegraph Co., 84 Miss. 448; Dodson v. Telegraph Co., 52 So. 693, 97 Miss. 104; Insurance Co. v. Walker, 99 Miss. 404, 55 So. 51; Standard Acc. Ins. Co. v. Broom, 71 So. 653, 111 Miss. 409; General Accident Fire & Life Assurance Co. v. Walker, 99 Miss. 404, 55 So. 51; Fraternal Aid Union v. Whitehead, 125 Miss. 53, 87 So. 453; Stuyvesant Ins. Co. v. Smith Motor Sales Co., 99 So. 575, 135, Miss. 585; Mass. Protective Assn. v. Cranford, 102 So. 171, 137 Miss. 876; Southern Express Co. v. Capetown, 44 Ala. 101.

Notwithstanding the literal meaning of the words used, unless clearly negatived, a stipulation in an insurance policy requiring notice should be read with an exception reasonable saving the rights of the assured from forfeiture when, due to no fault of his own, he is totally incapacitated from acting in the matter. That which cannot fairly be said to have been in the minds of the parties, at the time of the making of the contract, should be held as excluded from its terms.

Swann v. Atlantic Life Ins. Co., 159 S.E. 193; Minnesota Mut. Life Ins. Co. v. Marshall, 29 F. 977; Houseman v. Home Ins. Co., 88 S.E. 1051; Insurance Co. v. Boykin, 12 Wall. 433, 20 L.Ed. 442.

It could not have been in the contemplation of the parties that if the insured, who is required to give notice, was unable to do so by reason of the very accident against which indemnity was given, he should therefrom lose such indemnity through no fault of his own.

Missouri State Life Ins. Co. v. Fevre, 10 S.W. 267.

It is settled by an overwhelming weight of authority that where the failure to give prompt notice is not due to the negligence of the insured or the beneficiary, but such compliance has been prevented and rendered impossible by an act of God, this would furnish a sufficient legal excuse for the delay in giving the stipulated notice; and this doctrine has been applied in cases in which a specified time for the giving of the notice has been fixed by the contract.

Levan v. Metropolitan Life Ins. Co., 138 S.C. 253, 136 S.E. 304, 306; Rhyne v. Jefferson Standard Life Insurance Co., 196 N.E. 717, 147 S.E. 6, 7; North American Acc. Ins. Co. v. Watson, 67 A. App. 193, 64 S.E. 693; Craig v. Insurance Co., 80 S.C. 151, 61 S.E. 438, 128 Am. St. Rep. 877, 15 Ann. Cas. 216.

Contracts of insurance will never be so construed as to destroy that contracted for, which would be the case here, by compelling Berry to do that which the law forbade.

Phoenix Ins. Co. v. Erie & Western Transp. Co., 117 U.S. 312.

The furnishing of satisfactory notice is not a condition precedent of liability.

National Casualty Co. v. Mitchell, 138 So. 808; Byran Lumber & Supply Co. v. Page, 109 Conn. 256, 146 A. 293.

W. D. Hilton, of Mendenhall, and J. Morgan Stevens, and Green, Green & Jackson, for appellant.

When the legislature changed the rule by the introduction of Section 2575, and thereafter this court decided those cases construing this rule hereinbefore referred to, and then the legislature, with this judicial determination, readopted Section 2575 as now embodied in Section 2294, Code of 1930, this court may not change that construction.

Masonite Corporation v. Lockridge, 140 So. 223; Wetherbee v. Roots, 72 Miss. 355, 16 So. 902; Hay v. Hay, 93 Miss. 732, 48 So. 903; White v. Illinois Central, 55 So. 593; Hamner v. Yazoo Delta Lumber Co., 100 Miss. 349, 56 So. 466; Henry v. Henderson, 103 Miss. 48, 60 So. 33; Womack v. Lumber Co., 131 Miss. 201, 94 So. 2; Burke v. Moody, 141 Miss. 370, 106 So. 528, 107 So. 279.

Wells, Jones, Wells & Lipscomb, of Jackson, for appellee.

Contracts of insurance may provide for the forfeiture of a policy upon default of the prompt payment of the premium and upon default, without any affirmative action of the company, further liability upon the policy is ended and all rights under the policy are forfeited except as to any contractual stipulations for automatic extended insurance.

New York Life Ins. Co. v. Odom, 100 Miss. 219, 56 So 379;...