Kimsey v. Jefferson Standard Life Ins. Co.

• Decision Date: 16 May 1935
• Docket Number: 6 Div. 744
• Citation: 161 So. 796,230 Ala. 550
• Parties: KIMSEY v. JEFFERSON STANDARD LIFE INS. CO.
• Court: Alabama Supreme Court

161 So. 796

230 Ala. 550

KIMSEY v. JEFFERSON STANDARD LIFE INS. CO.

6 Div. 744

Supreme Court of Alabama

May 16, 1935

Rehearing Denied June 20, 1935

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Suit by Mary Kimsey, suing as guardian of the estate of Malcolm Milton Kimsey, a person of unsound mind, for the use of such person, against the Jefferson Standard Life Insurance Company. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Taylor & Higgins, of Birmingham, for appellant.

Hugh A Locke, of Birmingham, for appellee.

GARDNER Justice.

The appeal turns upon the sufficiency of count A. It is there disclosed that promptly upon due proof of disability of the insured, the defendant company began, and has continued, the stipulated monthly payments, and paid the premiums as well in strict accord with the policy provisions. This suit is to recover disability payments, and premiums paid prior to this time, rested upon the theory that recovery should be had from the date of disability, rather than from the time of furnishing due proof thereof. In support of this theory counsel for plaintiff present two lines of argument. The first rests upon the contention that the policy provisions concerning furnishing due proof of disability are conditions subsequent and therefore the failure to so furnish presents no obstacle in the way of recovery.

But we consider this question foreclosed, contrary to plaintiff's contention, in the following of our cases McCutchen v. All States Life Ins. Co., 229 Ala. 616, 158 So. 729, 730; McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349; New England Mutual Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 59 A.L.R. 1075; Burchfield v. Aetna Life Ins. Co., 159 So. 235. In McCutchen v. All States Life Ins. Co., supra, it was stressed that New England Mutual Life Ins. Co. v. Reynolds, supra, be overruled, and answering this contention the opinion reviews later authorities fully sustaining the holding in the Reynolds Case, including that of Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416, quoting therefrom as follows: "Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due."

These cases are also to the effect that subsequent insanity of the insured will not excuse performance of this condition precedent. Nor can the fact there had been no default in premium payments alter the case, as readily disclosed by the reasoning found in these opinions, and particularly with that of Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416, where, as we understand the case, there was no default.

Nor can the fact that the policy here provides for no diminution in the amount payable at the death of the insured by reason of disability payments, in any manner affect the question here presented; that of furnishing proof as a condition precedent.

While the language in the policy here considered may not be the precise wording of those in our cases cited above, yet the similarity is so great and the difference in the wording so negligible as to leave no room for doubt or debate that the meaning is the same, and that the presentation of due proof is a condition precedent to the obligation to pay. It can only properly be classed with the list of "kindred cases" noted in McCutchen v. All States Life Ins. Co. supra. But further consideration of this phase of the case may be dispensed with as unnecessary in the light of these...