Hetzel v. Pacific Mut. Life Ins. Co. of Cal.
| Citation | 150 S.E. 385,108 W.Va. 22 |
| Decision Date | 15 October 1929 |
| Docket Number | 6546. |
| Parties | HETZEL v. PACIFIC MUT. LIFE INS. CO. OF CALIFORNIA. |
| Court | Supreme Court of West Virginia |
Submitted October 2, 1929.
Rehearing Denied Dec. 4, 1929.
Syllabus by the Court.
A denial of all liability and a refusal to pay a claim then due under an insurance policy amounts to a waiver of a provision contained in said policy, providing that no suit should be brought thereon until 60 days after the claim thereunder has become due and proof thereof has been duly made.
The defendant carries the burden of proof on matters set up as affirmative defenses in an action on an insurance policy.
Where a policy, insuring against disability resulting from bodily injury effected through accidental means and from sickness, provided that the assured shall be paid a certain sum per month for "continuous, necessary and total loss of all business time" due to sickness the insured is entitled to recover, if such sickness renders him incapable of performing, in substantially his customary and usual manner, all the duties necessary to the practical prosecution of the business of his insuring occupation disregarding all trivial acts, which are not material to the prosecution thereof, but which are merely incidental thereto.
Error to Circuit Court, Mercer County.
Action by John J. Hetzel against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant brings error. Affirmed.
Russell S. Ritz and H. F. Porterfield, both of Bluefield, for plaintiff in error.
Walter V. Ross, of Bluefield, for defendant in error.
WOODS P.
This is an action on a non-cancellable income policy to recover certain accrued disability benefits claimed to be due thereunder. The insurance company prosecutes this writ from a judgment of the circuit court of Mercer county, entered on a jury verdict in favor of the plaintiff.
On June 24, 1927, the defendant company issued its policy insuring the plaintiff against disability, commencing while the same is in force, resulting from bodily injury effected through accidental means and from sickness, whereby, in consideration of the payment of certain annual premiums to be paid by the plaintiff, it was agreed, among other things, to pay the insured an indemnity at the rate of $300 per month for the period throughout which such disability "consists of continuous, necessary and total loss of all business time," etc. On August 9, 1928, the plaintiff, as a result of trouble with his feet and legs, interfering with his locomotion, and acting upon medical advice, gave up the active management of his business, and immediately notified the defendant company of such disability through its claim agent, Mr. Fontain, of Cincinnati, who acknowledged receipt of the notice. Shortly thereafter Dr. Hoge, an examiner for the company living in Bluefield, diagnosed the trouble as "muscular atrophy, involving the legs below the knees." Plaintiff was referred to a neurologist at the University of Pennsylvania, who, after due observation, diagnosed the malady as "Charcot-Marie, tooth form, muscular atrophy." No cure is known.
After the elapse of the 60-day elimination period (August 9th to October 9th) provided for in the policy, the company voluntarily made payment of indemnity at the rate of $300 per month for the two months, October 10th to November 10th, and November 10th to December 10th. Payment for the month ending January 10, 1929, was not made. In a letter from Mr. Fontain, bearing date January 17th, the plaintiff was informed that the company had been advised that he had taken an active part in the fall election of 1928, that he was acting as deputy sheriff for Beaver Pond district, since January 1, 1929, and that he had taken out other insurance in Penn Mutual Life Insurance Company, without notifying defendant company.
The point is made that the trial court should have struck out the plaintiff's evidence and directed a verdict for the defendant, on the grounds (a) that the action was prematurely commenced; (b) that the plaintiff had other insurance, which should have been taken into account, in case of a recovery; (c) and that the plaintiff was not totally disabled from performing any and all business. A further objection was made to the refusal and giving of certain instructions.
Proofs of loss were filed in due time for the amounts due January 10 and February 10, 1929. Counsel for the defendant contends that no action can be taken on any particular monthly payment until after the expiration of 60 days. They insist that the letter of January 17, 1929, denying liability under the policy, merely denied indemnity under the claim for January, pending at the time the letter was written, and that it reserved the right to pay any future claim, should the plaintiff later become totally disabled. This, of course, implied that claimant could not hope for payment as long as his condition remained as it was at the time of the writing of the letter. Such a position plainly amounted to a denial of payment of all future indemnity, unless the plaintiff was able to bring himself within the requirements as laid down by the company in its letter. As the amount claimed for February was based on a condition similar to that of January, so the denial of liability goes to both months, and amounts to a waiver of the benefit of the 60-day clause. Cooley on Insurance, vol. 4, p. 3959; 35 C.J. 75, 782; 14 R.C.L. 1349, § 522; Scott v. Life & Casualty Ins. Co., 34 Ga.App. 479, 129 S.E. 903; Clark Millinery Co. v. National Fire Insurance Co., 160 N.C. 130, 75 S.E. 944, Ann.Cas. 1914C, 367; Oil Service Co. v. Detroit Fidelity & Surety Co., 105 W.Va. 130, 141 S.E. 626.
While the defendant did state in its specification of defenses that the plaintiff had taken out insurance with the Penn Mutual Life Insurance Company, without giving written notice to it, no proof was offered on trial to show that written notice was not given, or what amount of insurance covering the same loss was carried with said company. This is an affirmative defense, and the burden of proof rested upon the defendant. Jennings v. Clover Leaf Life & Casualty Co., 146 S.C. 41, 143 S.E. 668. Such conditions, according to our decisions, must be construed strictly against the company and liberally toward the insured. Tucker v. Insurance Co., 58 W.Va. 30, 51 S.E. 86.
And now we come to the question of whether or not the plaintiff was totally disabled, within the meaning of the policy sued on. We find from the reported cases that disability insurance may be divided into two general classes: Those wherein the policy provides for an indemnity, if the insured is disabled from transacting the duties pertaining to the occupation in which he is then engaged; and those wherein the policy provides for an indemnity, if the insured is disabled from performing any work or following any occupation. Counsel for the defendant company contend that, in the absence of evidence showing total disability to pursue any kind of gainful occupation, the plaintiff is not entitled to recover under the policy of insurance sued on. In other words, they would place the policy within the second class above referred to. But will the policy warrant such a construction?
The case of Lyon v. Railway Passenger Assurance Co., 46 Iowa 631, is relied on by the insurance company. There the contract provided that the insurer would "indemnify the assured *** against loss of time, *** while totally disabled and prevented from the transaction of all kinds of business." The court pertinently remarked in its opinion: The clause defining the disability in the policy needs only to be considered, to see its inapplicability to the policy here under review.
In the instant case, the application, which is made a part of the policy, in answer to the question, recites, "Owner and manager of Bluefield...
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