Hays v. General Assembly American Benev. Ass'n.

• Decision Date: 22 October 1907
• Citation: 127 Mo. App. 195,104 S.W. 1141
• Parties: HAYS v. GENERAL ASSEMBLY AMERICAN BENEV. ASS'N.
• Court: Missouri Court of Appeals

104 S.W. 1141

127 Mo. A. 195

HAYS v. GENERAL ASSEMBLY AMERICAN BENEV. ASS'N.

St. Louis Court of Appeals. Missouri.

October 22, 1907.

1. EVIDENCE — LETTER — ADMISSIBILITY.

In an action on a health insurance policy, a letter received by insured, in response to his letter claiming sick benefits, on insurer's stationery, purporting to be signed by its president, the envelope bearing insurer's address for return in case of nondelivery, and being postmarked as mailed where insurer's office is located and as received where insured resides, was admissible without proof of the genuineness of the president's signature.

2. INSURANCE — PROOFS OF LOSS — WAIVER.

An insurer waives proof of loss by denying liability on the policy.

3. SAME — HEALTH INSURANCE — CONFINEMENT TO BED — POLICY CONSTRUED.

Insured was "entirely and continuously confined to bed," within a health policy, where he was confined to bed the greater portion of the time every day during his sickness, though at times he sat outside the house, was once driven a few blocks, and was in and out of bed many times.

4. SAME — SETTLEMENT — EFFECT.

That on March 13th insurer in a health policy settled with insured for sickness ending March 10th, and the policy provided that the insurer should not be liable for "any second claim for any sickness" until after 30 days after the payment of a previous claim, does not relieve the insurer from liability for sickness, not traceable to the former sickness and commencing March 16th.

Appeal from Circuit Court, Scotland County; C. D. Stewart, Judge.

Action on a health policy by Alfred M. Hays against the General Assembly American Benevolent Association. From a judgment for plaintiff, defendant appeals. Affirmed.

N. M. Pettingill, for appellant. John M. Jayne, for respondent.

NORTONI, J.

Plaintiff sues upon a policy of what is commonly called health insurance; the indemnity vouchsafed therein being insurance payable to him in case he should become disabled from sickness within the terms of the policy. It will be more particularly referred to in a subsequent portion of the opinion. Among other things, the policy required proofs of the sickness to be made in writing in a certain form, "within a month from the date the disability ceases for which the indemnity is asked." The answer of the defendant pleaded failure on the part of plaintiff to comply with this condition of the policy and invoked it as a defense to the action. The plaintiff relies upon a waiver of the condition because of its having positively denied all liability on the policy within the time allowed him for the furnishing of the proofs required.

The facts with reference to this matter are as follows: It appears that on September 23d plaintiff made a detailed report in writing of his sickness and a claim for sick benefits resulting therefrom, from March 16th to September 16th of that year, and mailed the same to the defendant company at its home office in the city of St. Louis, and, in answer to this written communication from the plaintiff relative to his said claim, plaintiff received, on September 29th, a letter written on defendant's stationery at its office in St. Louis, Mo., dated September 28th, and purporting to have been signed by defendant's president, L. A. Cunningham. The contents of this letter acknowledged receipt of plaintiff's communication and claim and informed him that it had been presented to the company's board of directors, and payment thereof was denied him "on the ground that the association is not liable for this disability." The envelope in which this letter was received, being introduced, bore the name of the defendant association and a direction to return it to defendant in five days at St. Louis, Mo., if not delivered; all of which was printed in the corner thereof in legible type. The postmark showed it to have been mailed in St. Louis September 28th, at 7 o'clock p. m., and received in Memphis, Mo., September 29th at 10:30 o'clock a. m. It was properly addressed to plaintiff and received by him in Memphis, his home, in due course. No evidence was introduced by the plaintiff tending to prove the handwriting of Mr. Cunningham, the president of defendant company, whose signature purports to be attached to the letter. Defendant objected to the introduction of this letter for the reason no evidence was introduced tending to prove the handwriting was the signature of Mr. Cunningham, the president of the association, and now urges here the overruling of this objection as an assignment of error. In view of the facts above stated, to the effect that this letter from defendant, signed by its president, was received in answer to plaintiff's written communication of September 22d, claiming benefits, it was entirely competent evidence for the purpose introduced, even though there was no proof of the genuineness of the signature. There is a well-known exception to the rule requiring proof of handwriting in the case of letters received in reply to other written communications, proved to have been forwarded to the party who answers by letter relative to the same matter. It is fully discussed by Mr. Greenleaf in his work on Evidence ([14th Ed.] § 573a). See, also, Kloes v. Wurmser, etc., 34 Mo. App. 453. The assignment will be overruled. The letter introduced, containing a positive denial of...