Box v. Metropolitan Life Ins. Co., 7 Div. 369

• Citation: 232 Ala. 447,168 So. 220
• Decision Date: 26 March 1936
• Docket Number: 7 Div. 369
• Parties: BOX v. METROPOLITAN LIFE INS. CO.
• Court: Supreme Court of Alabama

168 So. 220

232 Ala. 447

BOX v. METROPOLITAN LIFE INS. CO.

7 Div. 369

Supreme Court of Alabama

March 26, 1936

Rehearing Denied May 28, 1936

Certiorari to Court of Appeals.

Petition by John T. Box for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in Box v. Metropolitan Life Ins. Co., 168 So. 209.

Writ denied.

See also (Ala.Sup.) 168 So. 216; and (Ala.Sup.) 168 So. 217.

Chas F. Douglass, of Anniston, for petitioner.

Cabaniss & Johnston and Lucien D. Gardner, Jr., all of Birmingham, and Chas. D. Kline, of Anniston, for respondent.

FOSTER Justice.

There is one important legal question presented by this petition for certiorari. We think it was correctly decided by the Court of Appeals in the opinion sought to be reviewed. It was not involved on former certiorari proceedings in this cause.

This is a disability policy of insurance, and six months after receipt of due proof of such disablement, the company agrees to begin making payments in one of certain periods of installment to be selected by insured until a definite amount is paid, as described in the complaint.

It is claimed that the insurer waived the proof by denying liability upon the sole ground that plaintiff was not permanently and totally disabled, and that such denial had the effect of accelerating the date of the installment payments so as to justify an immediate suit, in the first count for the first installment, and in the second and third counts, for all of them, to be calculated at their present cash value. This was by way of replication to a plea in abatement that the suit was prematurely begun, since no installment was due to be paid until the expiration of six months from the receipt of due proof, which it alleged did not occur until a certain date. The replication to be a good defense must be construed to mean that such a denial of liability justified an immediate suit, not waiting for the maturity of even the first installment payment. The court sustained demurrers to all the replications, except No. 10, which is to the same effect. That put the burden on plaintiff to prove that the insurer denied liability on that sole ground on May 24, 1933, since there was no general issue pleaded to the plea in abatement.

There was a verdict for defendant, and the Court of Appeals held that the evidence did not support that replication, and the verdict on an affirmative charge for defendant was proper. In this ruling there is nothing for us to review. We do not see therefore how plaintiff was prejudiced by sustaining demurrer to the other replications, since plaintiff had the benefit of the question by replication No. 10, and lost on the issue of fact. But since the Court of Appeals did not predicate its ruling on that ground, but considered the merits of the principle sought to be presented by the replications, to determine whether a denial of liability by the insurer on the ground that plaintiff was not permanently and totally disabled, was not only sufficient to waive presentation of due proofs, but also accelerated the date of payment of the deferred installments, one or all of them, we feel that it is our duty to review that ruling without inquiring for ourselves whether a decision favorable to plaintiff on that question would show that he was in fact prejudiced.

The rule is recognized in this state that when an insurance policy stipulates for one payment of the sum agreed on for the loss, and that no suit can be brought until a certain time after the proof is furnished, when there is a waiver of the proof, the right of action immediately accrues. The authorities are cited in our case of Rhode Island Ins . Co. v. Holley, 226 Ala. 320, 146 So. 817.

The policy in the instant suit fixes a time (when selected by insured) for the payment of each installment, all deferred. Their maturity may be set in the contract with reference to the date of the loss or any other event to be agreed on. But when fixed, it is definite such as the date for the performance of any other duty measured by a stipulated occurrence.

The question therefore should probably be controlled by the general rule applicable to the right of a party to begin suit at once on account of an anticipatory breach of it by the other. It is said that when a party is bound to the future performance of his bilateral contract, the other party may treat it as breached, and bring immediate suit, (a) when he puts it out of his power to perform it, or (b) if he renounces the contract and declares his intention not to perform it. 13 Corpus Juris, 700, 701; 1 Restatement of Contracts, § 318; 3 Williston on Contracts, § 1325. But the "repudiation by one party, to be sufficient in any case to entitle the other to treat the contract as absolutely and finally broken *** must at least...