Heralds of Liberty v. Jones

• Decision Date: 22 March 1926
• Docket Number: 25526
• Citation: 142 Miss. 735,107 So. 519
• Court: Mississippi Supreme Court
• Parties: HERALDS OF LIBERTY v. JONES. [*]

107 So. 519

142 Miss. 735

HERALDS OF LIBERTY v. JONES. ^[*]

No. 25526

Supreme Court of Mississippi

March 22, 1926

Division B

1 INSURANCE.

Evidence held to sufficiently show that insured was in good health when the contract of insurance against disability was entered into.

2 INSURANCE. Presumption, stated by policy, that total disability

for six months, preventing engaging in occupation, shall be "presumed" to be permanent, held conclusive.

Under clause of policy, that disability shall be deemed to be total and permanent whenever member becomes totally disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation, and that such total disability shall be "presumed" to be permanent after he has been continuously so disabled for six months, the presumption is conclusive, making the insurance payable, though insured recovered subsequent to the six months.

HON. R S. HALL, Judge.

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Action by Walter W. Jones against Heralds of Liberty. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Ross & Backstrom and Geo. J. Edwards, Jr., for appellant.

I. Plaintiff was not in good health at the time the certificate was delivered to him and it was never in force and effect for that reason. Receipt of plaintiff's request for a new certificate was acknowledged by defendant in its letter of February 26, 1923, and the new certificate was transmitted to plaintiff with defendant's letter of March 21, 1923. The evidence also shows that on February 26, 1923, plaintiff was suffering from a nervous breakdown, and that his condition became such that on March 8, 1923, he was committed to the East Mississippi Insane Hospital at Meridian, Mississippi, where he remained in confinement until March 6, 1924. It is apparent, therefore, that he was not in good health when the certificate sued upon was delivered to him, and no liability under the certificate attached to defendant. 14 R. C. L., sec. 78, p. 900; Gordon v. Prudential Life Ins. Co., 231 Pa. 404; Landy v. Phila. Life Ins. Co., 78 Pa. S.Ct. 47; Lee v. Prudential Life Ins. Co., 203 Mass. 299; Rathbun v. New York Life Ins. Co., 30 Idaho 34; Ebner v. Ohio State Life Ins. Co. (Ind.), 121 N.E. 315; Life, etc., Ins. Co. v. King, 137 Tenn. 685; Logan v. New York Life Ins. Co., 107 Wash. 253; New York Life Ins. Co. v. Mason, 115 Ark. 135; Denton v. Kansas City Life Ins. Co., 231 S.W. 436; Mutual Life Ins. Co. v. Mandelbaum, 207 Ala. 234; Wright v. Federal Life Ins. Co. (Tex.), 248. S.W. 325.

II. No proof of total and permanent disability was furnished to defendant or proved at the trial. The evidence conclusively shows that no total and permanent disability ever existed. The plaintiff admits and the evidence shows that he was discharged from the hospital on March 6, 1924, and that he thereafter resumed his connection with the United States Post Office Department and was working for it at the time of the trial. The peculiar disability upon which plaintiff based his claim was "insanity." If we insert the name of the disability in place of the word "disability," we find plaintiff alleging that he was "totally and permanently insane," and seriously contending for that as a fact in the face of an adverse declaration in the proof which he had submitted to the defendant and in the face of the actual fact that at the time of the trial he was working for the United States. He never had a permanent disability. For a time he may have been wholly disabled, but he was never permanently disabled.

III. There can be no presumption of permanent disability in this case under any circumstances. The plaintiff places much reliance on the provision that after six months' continuance of total disability it shall be presumed to be permanent; but see Cory v. Spencer, 67 Kan. 648; Blaufus v. People, 69 N.Y. 107, 111; Dederick v. Wolfe, 68 Miss. 500; 14 R. C. L., sec. 103, p. 931; Crosse v. Supreme Lodge, 254 Ill. 80; Schuermann v. Ins. Co., 161 Ill. 437; Guarantee Co. v. Bank, 183 U.S. 402; Ins. Co. v. Boon, 95 U.S. 117; Yoch v. Ins. Co., 111 Cal. 503; Schroeder v. Ins. Co., 133 Cal. 18; Coal Co. v. Ins. Co., 192 Ala. 42; Kane v. Brotherhood of Trainmen, 102 Neb. 645; Crowell v. Ins. Co., 169 N.C. 35; Sea v. Ins. Co., 132 Tenn. 673; Stanyan v. Ins. Co., 91 Vt. 83; Donahue v. Ins. Co., 37 N.D. 203; Jones v. Casualty Co., 189 Ia. 678; Bew v. Ins. Co., 95 N.J.L. 533; Powers v. Ins. Co., 186 N.C. 336; Bank v. Casualty Co., 142 Md. 454.

The undertaking is to pay for "permanent" total disability. Its plain object cannot be perverted and construed away by interpretations of clauses and terms of a purely administrative character.

Davis & Hill, for appellee.

Appellee and his wife both testified that the policy had been received before the appellee became ill on February 26; appellee said he signed the request and sent it in some time in November and received the new certificate some time in December perhaps or, at any rate, before he became ill. His wife testified that after her husband was sent to the asylum, she went through his effects and found said certificate, together with other policies and papers, and that all the papers were tied together with a string, thus showing that the said policy was in fact received by appellee before he was sent away on March 8. Since the plaintiff's testimony showed that the request and policy were received in December or before the appellee became ill, this was an issue of fact for the jury which was decided adversely to appellant, and the verdict of the jury cannot be disturbed.

This brings us to the principal point of controversy; that is, whether or not the appellee is entitled to the proceeds of the policy because of his recovery. According to our viewpoint, we do not see how it can be seriously contended that the insured is not entitled to his money when he established six months of total disability; but if there is any doubt about the meaning of the clause in the policy that total disability shall be presumed to be permanent after six months of continued incapacity, then we say that the appellant by its conduct is estopped to deny that it did not agree to pay the policy at the expiration of the six months' period.

The very argument advanced in appellant's brief demonstrates that the question of the permanency of the disability is settled after the insured is disabled for six months. Counsel says "the only reasonable and just conclusion that can be placed upon these words 'shall be presumed,' if there is any doubt about the matter, is that it was not intended that a member should be obliged to wait the rest of his life to see if the disability was permanent, or that he should be obliged to depend upon the opinions of physicians and other persons who might be qualified to pass upon the question, and whose opinions might be hard to obtain or expensive, and might be conflicting." It is because of these reasons that such a clause was inserted in this policy for the purpose of making the policy attractive to persons desiring insurance. It is a matter of common knowledge that hundreds of cases arise wherein the most eminent of physicians, surgeons and experts disagree as to whether or not an injury or disability is permanent. It is a mere matter of opinion after all and, therefore, it is a question which the insurer may not raise or inquire into when six months' continuous disability has once been shown. This is so clear that it cannot be questioned.

Argued orally by J. C. Ross, for appellant.

OPINION

HOLDEN, P. J.

The suit is by the appellee, Walter W. Jones, to recover five hundred dollars for total and permanent disability under an insurance certificate issued by the appellant, Heralds of Liberty, who appeal from a judgment against it for that sum.

There are many assignments of error urged for reversal but we do not think any of them merit discussion except two, and they are, first, whether or not the certificate was issued and delivered to the insured, upon his application therefor, while in good health; and, second, whether or not the insured was totally and permanently disabled under the provisions of the certificate.

The facts in the case, as found by the jury and otherwise conclusively shown, are, in substance, as follows: In 1922 Heralds of Liberty began issuing new certificates which provided for the payment of five hundred dollars if the insured became totally and permanently disabled. Appellee Jones, sent in his old certificate with the sum of one dollar, as required, and requested the issuance of a new certificate in the place of the old one. This request for an exchange of certificates was made February 12, 1923. The appellant,...