Equitable Life Assur. Soc. v. Henderson
| Decision Date | 08 February 1937 |
| Docket Number | 32569 |
| Citation | 177 Miss. 815,172 So. 321 |
| Court | Mississippi Supreme Court |
| Parties | EQUITABLE LIFE ASSUR. Soc. v. HENDERSON |
Suggestion Of Error Overruled, March 8, 1937.
APPEAL from the circuit court of Alcorn county HON. THOS. H JOHNSTON, Judge.
Suit by Mrs. Ida Henderson against the Equitable Life Assurance Society. From a judgment for plaintiff, defendant appeals. Reversed and rendered.
Reversed and judgment for appellant.
Watkins & Eager, of Jackson, and W. C. Sweat, of Corinth, for appellant.
The court erred in rendering judgment for appellee. The declaration of appellee fails to state a cause of action in that she does not allege that the disease which caused the total and permanent disability was contracted after August 22, 1934.
It is the contention of the appellant that appellee's declaration must show a compliance with all the conditions of the policy, and unless these conditions are alleged to have been fulfilled, then appellee fails to make a good cause of action under the policy sued upon.
Penn Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736; 23 Cyc. 740, notes 83, 84; Standard Life Ins. Co. of the South v. Coleman, 170 So. 297; Cooperative Oil Co. v. Greenwood Agency Co., 148 Miss. 536, 114 So. 397; Mullican v. Meridian Light & Ry. Co. , 121 Miss. 806, 83 So. 816; State v. Junkin, 159 So. 107.
Parties to an insurance contract have the right to assume or not assume certain risks, and the Supreme Court must enforce the contracts as they are written, unless they are contrary to the law of the state or to some public policy.
New Amsterdam Casualty Co. v. Perryman, 162 Miss. 864, 140 So. 342; Fidelity & Deposit Co. v. Merchants' & Marine Bank of Paseagoula, 151 So. 373, 154 So. 260; Berry v. Lamar Life Ins. Co., 145 So. 887, 165 Miss. 405; Lavender v. Volunteer State Life Ins. Co., 157 So. 101; Protective Life Ins. Co v Hale 161 So. 248; Yarbrough v. Atlantic Life Ins. Co., 84 F.2d 319; Imperial Fire Ins. Co. v. County of Coos, 151 U.S. 153, 38 L.Ed. 231.
The burden of proof is upon the appellee to show that the disease of pulmonary tuberculosis, from which the appellee claims to be suffering, was contracted after August 22, 1934, which under the policy was the first day that appellee became eligible for total and permanent disability benefits.
Life & Casualty Ins. Co. of Tenn. v. Jones, 73 So. 566; Love v. New York Life Ins. Co., 64 F.2d 829; Burkett v. New York Life Ins. Co., 56 F.2d 105; Jno. Hancock Mutual Life Ins. Co. v. Hicks, 183 N.E. 93; Apter v. Home Life Ins. Co. of New York, 194 N.E. 846.
G. C. Moreland, of Corinth, for appellee.
The policy does not provide that the disease from which total and permanent disability results must be contracted after the expiration of one year from the date of the policy but on the contrary, the policy provides that if the insured becomes totally and permanently disabled after the expiration of the year, then the company will pay the benefit provided in the policy.
The cause which finally resulted in total and permanent disability may have existed for a long time, yet until the insured actually became totally and permanently disabled, the company was not liable under the terms of the policy. In a suit on an accident and disability policy by the beginning of the disability of the plaintiff means the time when the disease first became manifest or active, and does not mean the time when the medical cause of the disease may have originated or begun.
Provident Life & Acc. Ins. Co. v. Jemison, 153 Miss. 53.
If a declaration does not state a cause of action, the defendant may demur and if his demurrer is overruled, he may then object to testimony tending to prove facts not alleged in the declaration and, if his objections are overruled, he may then request a peremptory instruction; if his peremptory instruction is overruled and judgment is rendered against him, he may then appeal to the Supreme Court where the court will reverse and remand withleave to amend.
Newell Contracting Co. v. Flynt, 161 So. 743.
However, we insist that the declaration is not defective, and that it states a good cause of action. We further insist that the allegations of the declaration are fully sustained by the proof and that under the evidence in this case, the learned circuit judge could have rendered no judgment other than a judgment for appellee.
Counsel for appellant are in error when they say that the contract of insurance in the case at bar specifically limits the liability of the insurer, that is, that the insured becomes eligible for total and permanent disability for injury received for diseases contracted one year after the effective date of the policy, but on the contrary, the policy provides specifically that the insured becomes eligible for total and permanent disability benefits in the event she becomes totally and permanently disabled after the expiration of one year from the effective date of her policy, cases cited by appellant are not in point with the case at bar.
The court found as a fact that Mrs. Henderson was afflicted with pulmonary tuberculosis, and that she was totally and permanently disabled.
Equitable Life Assurance Society v. Serio, 124 So. 485.
The finding of the court on controverted facts is analogous to the verdict of a jury and his finding of fact will not be disturbed on appeal unless manifestly wrong or against the overwhelming weight of the evidence.
Davis v. Richards, 45 Miss. 499; Apple v. Ganong, 47 Miss. 189; Wilson v. Bauchamp, 50 Miss. 44; Lott v. Hull, 104 Miss. 308; Grace v. Pierce, 127 Miss. 83; Scott v. Perry, 140 Miss. 452; Babcock v. Holloway, 140 Miss. 120; Austin v. Page, 169 So. 671.
Argued orally by W. H. Watkins, Jr., for appellant.
Appellant Equitable Life Assurance Society, issued a group insurance policy covering the employees of the Weaver Pants Corporation; and, on August 22, 1933, in pursuance of the terms of the master policy, it issued an individual certificate of...
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