Cordell v. Metro. Life Ins. Co
| Decision Date | 16 July 1936 |
| Docket Number | No. 25260.,25260. |
| Citation | 54 Ga.App. 178,187 S.E. 292 |
| Parties | CORDELL. v. METROPOLITAN LIFE INS. CO. |
| Court | Georgia Court of Appeals |
1. 5. The conditions of a policy of insurance against disability which require immediate notice of sickness and affirmative proof thereof within thirty days, and provide that no action shall be brought on it unless brought within two years from the expiration of the time within which such proof is required to be filed, may be waived by the insurer, and such waiver results from accepting proofs of disability and requiring medical examinations of the insured causing him expense and loss of time, after his failure to comply with the said conditions of the policy, notwithstanding general declarations by the insurer that, in pursuing the negotiations and inquiry as to the condition of the insured, it waived no rights or defenses under the policy.
2. A notice and claim for temporary disability is not notice of a permanent disability, under a policy of insurance which provides an indemnity for permanent disability different from the temporary disability benefit.
3. Grounds of demurrer cured by amendment or by stipulation of the parties should be overruled.
4. The allegations of the petition claiming damages and attorney's fees were demurrable.
Error from Superior Court, Walker County; C. H. Porter, Judge.
Suit by Henry Cdrdell against the Metropolitan Life Insurance Company. To review a judgment for defendant, plaintiff brings error.
Reversed.
Julius Rink, of La Fayette, for plaintiff in error.
Barry Wright and Jack Rogers, both of Rome, for defendant in error.
Henry Cordell filed a petition against the Metropolitan Life Insurance Company on October 16, 1934. The defendant demurred on general and special grounds. Before this demurrer was passed on, the plaintiff offered an amendment, which wasallowed subject to demurrer. The defendant renewed the first demurrer, and demurred on additional grounds to the petition as amended. The court sustained all the grounds in both demurrers, except one special ground, and dismissed the petition. The plaintiff's bill of exceptions assigns error upon the sustaining of each and every ground of the two demurrers.
In the petition as amended the plaintiff alleged that he was an employee of Consolidated Textile Corporation, and while so employed, received a certificate of insurance based upon a group life policy issued by the defendant to the textile corporation; that in February, 1930, he was compelled to cease work by reason of total disability, he having contracted pulmonary tuberculosis, gastritis, anemia, chronic dyspepsia, and chronic colitis; that during all the time since ceasing work with the textile corporation he has been totally unable to do any work requiring strength or energy; that he is now totally disabled and believes he will be totally disabled during the remainder of his life; that during the early part of his disability, he received the temporary benefits stipulated in the policy; that in the application for said temporary benefits he notified the defendants of his physical condition and his disabilities; that while he was an employee of the textile corporation this corporation deducted from his wages the sum of 20 cents per week as the premium on his certificate, and after he became totally disabled from work he continued to pay to the textile corporation the charges assessed against said certificate for a year or more; that the Metropolitan Life Insurance Company continued to accept the payment of the premiums on his certificate, this being done until the textile corporation refused longer to accept the premiums from the plaintiff, although he continued to make tender of the same; that he made formal demand on the defendant under date of September 9, 1933, for the payment of the total and permanent benefits stipulated in the certificate, and that he is entitled under said certificate to the sum of $25.52 per month for a period of twenty months, and since the date of his demand thirteen monthly payments have matured aggregating the sum of $331.76; this demand was made by his attorney, who made a second demand on September 22, 1933, by letters attached to the petition as exhibits; that his insurance under said certificate was of full force and effect when he ceased work, and by reason of his perma nent and total disability existing at the time he ceased work, and its continuance to the present time, and said disability being of such permanent character that he will be totally and permanently disabled for life from doing all or any substantial part of the work he had been doing prior to becoming disabled, and he is entitled to recover upon his certificate on which he had paid all premiums up to the time of becoming totally disabled, and for approximately two and one-half years thereafter and until his further payments were refused by the textile corporation; that he had complied with all the requirements both of the certificate and of the statute in giving notice to the defendant and of making and filing with the defendant his formal proof of disability as required by the certificate and by statute; that though he has furnished the defendant with due proof of disability, the defendant refused to pay the total benefits or any part of the same; that the defendant finally refused to pay in a letter dated January 25, 1934, copy of which is attached to the petition; that an application was made to the defendant by the textile corporation upon which the group-life policy was based and issued, said application together with the group policy and the certificate held by the plaintiff constituting the entire contract; and that he cannot set out a copy of the application because the same is not in his possession. He shows that he is of the age of fifty-two years: that he had made demand on the defendant for payment of the benefits stipulated in his certificate more than sixty days prior to the filing of the petition, and by reason of the failure of the defendant to pay the benefits within sixty days from the date of his demand, he is entitled to recover penalties in some sum not in excess of 25 per cent. of the sum due him under his certificate; that he is also entitled to a reasonable sum for the use of counsel for bringing and prosecuting his suit. In his amendment he further alleged that the provision of the certificate and the group-life policy with respect to notice of total disability, presenting proof of his disability and the provision requiring suit to be brought within a stipulated time, were waived by the defendant's permitting and requesting proof of the condition of the plaintiff's health; that while the group policy does require that notice of total and permanent disability be presented in a specified time and that suit be brought upon refusal to make adjustment within a fixedtime, either or both of these conditions would have been available to the defendant as a complete defense to this action had the defendant stood upon the letter of the contract, but that in accepting proof of his total and permanent disability after the rights of the defendant to rely upon the terms of the contract was a waiver of those terms, and his requests and directions to obtain certain specified proof from physicians named by the defendant, and for which examination the plaintiff contracted and paid, after the stipulations in the contract had become operative, constitute a waiver of those provisions on which the defendant could have legally relied, and which would have been a complete bar to any recovery on the certificate; that even though the contract provided that proof of disability should be filed within a certain time and that suit must be instituted within two years from the date of total disability, the defendant accepted proof of disability furnished by the plaintiff and requested Dr. E. H. Hise to make an examination of the plaintiff since the expiration of the two-year period fixed by the contract; that Dr. Hise did examine and make a report of the physical condition of the plaintiff on November 14, 1933, upon an order of the defendant dated October 10, 1933, the plaintiff reporting to Dr. Hise on several occasions between the two dates; that the certificate of Dr. Hise stated that the plaintiff was totally and permanently disabled; that on November 22, 1933, he was requested by the defendant to furnish statements from Doctors J. S. Alsobrook, S. P. Kitchens, and E. H. Hise, stating in said letter that they were assigning an alternate doctor to examine the plaintiff for the defendant; that on October 5, 1933, he received a letter from the defendant stating that the policy was no longer in force and that for Mr. Cordell to be eligible for the benefits claimed he should have become totally and permanently disabled while in the employment of the textile corporation and while the policy was alive, but reciting that, if such was the contention of the plaintiff, "we welcome proof to that effect, " and that the insurance company was assigning one of their doctors to examine the plaintiff. It was further alleged that such facts amounted to a waiver of the stipulations as to furnishing and accepting proof of the disability, as well as the filing of suit upon declining to pay the claim, the original suit having been filed immediately upon the final refusal to pay the claim and that the defendant is now estopped to rely on the strict provisions in the contract and now to plead the statute of limitations as to filing proof of disability, demand, and notice of total and permanent disability; that he furnished on request of the defendant, besides the certificate of Dr. Kitchens of April, 1930, two certificates from Dr. Kitchens under dates of January 30, 1934, and February 15, 1934, both of which certificates are in possession of the defendant and show pulmonary tuberculosis; that he...
To continue reading
Request your trial