Emergency Aid Ins. Co. v. Dobbs, 5 Div. 630

• Court: Supreme Court of Alabama
• Writing for the Court: PER CURIAM; The foregoing opinion was prepared by FOSTER; LIVINGSTON; PER CURIAM; LIVINGSTON
• Citation: 263 Ala. 594,83 So.2d 335
• Parties: EMERGENCY AID INSURANCE CO. v. Eurell E. DOBBS.
• Docket Number: 5 Div. 630
• Decision Date: 15 September 1955

Page 335

83 So.2d 335 263 Ala. 594 EMERGENCY AID INSURANCE CO.
v.
Eurell E. DOBBS. 5 Div. 630. Supreme Court of Alabama. Sept. 15, 1955.
Rehearing Denied Nov. 10, 1955.

[263 Ala. 596]

Page 336

J. C. Fleming, Elba, and Glen T. Bashore, Clanton, for appellant.

Omar L. Reynolds, Reynolds & Reynolds, Clanton, for appellee.

PER CURIAM.

This suit is predicated upon two policies of insurance issued by appellant to appellee, in which there is a provision for liability for the loss of the sight of one or both eyes resulting from an injury caused by external, violent and accidental means, occurring within three months after the accident. The policies contained the same terms. Clause 4 is in the following language: 'No action at law or in equity shall be brought or maintained on any claim arising under this policy * * * until after the expiration of ninety (90) days from the completion and filing of proofs of such claim on the forms provided by the company'.

The complaint did not set out the policy in full and did not refer to the existence of such a clause, but alleged notice to defendant of the loss claimed. The plea was in short by consent with leave to give in evidence any matter which if well pleaded would be admissible in defense.

Appellant on this appeal contends that the plea put in issue the failure to furnish the proofs as required by the policy; that there was no such evidence, and, therefore, the affirmative charge should have been given as requested.

Appellee (plaintiff) contends that such an issue must be raised by a plea in abatement verified as required by law. This was not done; and, further, plaintiff's counsel stated in the beginning of the trial that it was agreed that notice and proof of loss were duly given in accordance with the policy. Defendant's counsel answered in response to that statement by plaintiff's counsel:

Page 337

'And refused because the evidence did not show an accidental injury to his eyes'. That attorney is no longer of counsel, being now a judge and not engaged in practice. The other counsel who engaged in that trial are here making the point that due proof was not made.

The principle seems to be established that when the policy makes a right of recovery (or liability) conditioned upon making the proof, a special plea in abatement is not necessary. Life Ins. Co. of Virginia v. Hanback, 250 Ala. 643, 35 So.2d 696; Metropolitan Life Ins. Co. v. Phillips, 236 Ala. 259, 182 So. 35: New York Life [263 Ala. 598] Ins. Co. v. Sinquefield, 231 Ala. 185, 163 So. 812.

But when the time of payment is controlled by proof being made, failure to make the proof in due time merely postpones the time of payment and a plea in abatement is necessary if suit is brought before the time stipulated. Vardaman v. Benefit Ass'n of Ry. Employees, Ala., 82 So.2d 272; Metropolitan Life Ins. Co. v. Phillips, 236 Ala. 259, 182 So. 35; Westchester Fire Ins. Co. of New York v. Green, 223 Ala. 121(15), 134 So. 881; Home Ins. Co. of New York v. Murphy, 223 Ala. 566(2), 137 So. 393; Prudential Ins. Co. v. Gray, 230 Ala. 1, 159 So. 265; Prudential Ins. Co. v. Calvin, 227 Ala. 146(1) 148 So. 837.

A plea in short by consent, such as here interposed, permits proof of any defensive matter except as required by law to be interposed in a verified special plea. Johnston v. Isley, 240 Ala. 217, 198 So. 348.

We are of the opinion that under the terms of the instant policy proof of disability is not made a condition to the obligation to pay the disability benefits, and therefore a special plea in abatement, duly sworn to, was necessary to present that issue. But if we assume, as appellee contends, that the plea in short put that in issue, the record shows that it was agreed that such proof was duly furnished. Presumably this was a verbal agreement since it was not shown that it was in writing.

Appellant does not in terms insist upon the invalidity of the agreement because it was not in writing; but seems to assume that to be true. Although counsel for appellant do not refer in brief to section 46, Title 46, Code, they doubtless rely upon its effect. That statute gives an attorney power to bind his client by an agreement only when it is in writing or by an entry on the minutes of the court. But when attorneys verbally agree in the beginning of a trial or during its progress, and the court reporter takes it down as a part of the proceedings, we will not say at this time whether that complies with section 46, supra. But in this case at the outset and as a part of the trial Mr. Reynolds, attorney for plaintiff, announced that it is agreed among other things that 'notice and proof of loss of said alleged accidental injury was duly given to the defendant in accordance with said policy', to which Mr. Atkinson, attorney for defendant, replied: 'And refused because the evidence did not show an accidental injury to his eyes'. That was in substance the introduction in evidence of an agreement which had been made. If defendant had objection to it because not in writing, he should have so stated.

The merits of this suit are determined by the question of whether the loss of plaintiff's eyesight was due to 'external, violent and accidental means' or to disease otherwise caused. There was a judgment for plaintiff on the verdict of the jury, and defendant appeals.

Plaintiff's evidence tended to show, besides formal allegations, that he was a carpenter by trade and had no trouble with his eyesight prior to May 8, 1951. That on two occasions in the fall of 1950 his eyes were subjected to a blow torch used in welding. That both incidents hurt his eyes, but he recovered without consulting a doctor, and was in good condition on May 8, 1951. It was on that day that plaintiff claims he sustained an injury to his eyes by external, violent and accidental means, which caused him to lose the use of both...