Jackson v. Security Ben. Ass'n
| Decision Date | 29 April 1940 |
| Citation | 139 S.W.2d 1014,235 Mo.App. 368 |
| Parties | MADISON M. JACKSON, APPELLANT, v. THE SECURITY BENEFIT ASSOCIATION, RESPONDENT |
| Court | Kansas Court of Appeals |
Original Opinion of January 29, 1940, Reported at: 235 Mo.App. 368.
Motion overruled.
ON MOTION FOR REHEARING.
In the foregoing opinion, we stated that "the sole question determinative of the question of whether or not a prima facie case was made on the first count of the petition is whether or not the provision of Section 77 with respect to 'proof of age and disability' is a condition precedent to plaintiff's right to recover." Defendant, in its motion for rehearing, complains that following this statement our "entire discussion refers to the necessity of furnishing notice within a specified time . . .," and that the cases we referred to in this connection were liability insurance cases in which notice was required but proof of loss from the insured was not required.
We think our opinion, when read as a whole, is perfectly clear on this point. However, to guard against any possible confusion, we feel it appropriate to make these further observations.
In the foregoing opinion, we set out the substance of a letter of November 12, 1935, notifying defendant of plaintiff's age and of his disability and the date of its commencement. In this letter, plaintiffs through his attorney, offered to furnish any additional evidence and to execute any proof of claim which defendant might request. So far as the record shows, no request for further information or proof was made.
It is undoubtedly true that mere notice of disability would not constitute "proof" where defendant makes a reasonable request for additional evidence to establish his right to compensation under the terms of the contract of insurance and where plaintiff fails to comply with such request. We think it clear, however, that the notice given in this case, where defendant made no request for further evidence of the facts reported, constituted proof. And if it be contended that the notice should not be regarded as "proof" as provided in Section 77 of defendant's by-laws, then, under the circumstances here defendant, by its failure to demand something additional, must be held to have waived such proof. [Hablutzel v. Home Life Insurance Company of New York, 52 S.W.2d 480, 484.] This being true, it follows that what was said in the opinion with respect to notice applies with equal force, under the circumstances in this case, to proof of age and disability.
Defendant, in its motion for rehearing, makes the further contention that the language appearing in Section 77 of the by-laws does not in any event entitle plaintiff to recover any benefits prior to the date of making proof of age and disability. There are cases wherein, by the language of the policy, the date of giving notice or furnishing proof determines the commencement of the period for which disability benefits may be recovered. [Bergholm v. Peoria Life Insurance Co., 284 U.S. 489, 76 L.Ed. 416, 52 S.Ct. 230; Feinberg v. New York Life Insurance Co., 127 S.W.2d 82.] On the other hand, where the language of the policy does not declare in unmistakable terms that the insurer will be liable for the payment of disability benefits only for the period following the giving of notice or making of proof thereof, the language of the policy will be construed to mean that the insured, upon furnishing such notice or proof, is entitled to recover such benefits from the date of the commencement of the disability. [Minnesota Mutual Life Insurance Co. v. Marshall, 29 F.2d 977; Hablutzel v. Home Life Insurance Co., supra.]
We think it is clear that the provisions of the insurance contract in the case at bar come within the rule announced in the Hablutzel and Marshall cases, supra, and that the plaintiff is entitled to recover benefits from the time his disability began. This court discussed at length the basis of distinction on this point between these two lines of cases, in the case of Feinberg v. New York Life Insurance Co., supra. A reference to that case obviates any necessity for a repetition of that discussion here.
Defendant contends that on this point the case of Martin v Illinois Bankers Life Assurance Co., 91 S.W.2d 646, is in conflict with our view just...
To continue reading
Request your trial