Lewis v. Louisiana Indus. Life Ins. Co.

• Decision Date: 31 October 1941
• Docket Number: 6315.
• Citation: 4 So.2d 755
• Court: Court of Appeal of Louisiana — District of US
• Parties: LEWIS v. LOUISIANA INDUSTRIAL LIFE INS. CO.

4 So.2d 755

LEWIS v. LOUISIANA INDUSTRIAL LIFE INS. CO.

No. 6315.

Court of Appeals of Louisiana, Second Circuit

October 31, 1941

E B. Charbonnet, Jr., of New Orleans, and Chandler Furman, of Shreveport, for appellant-appellee.

Guy Wimberly, Jr., of Arcadia, for appellee-appellant.

TALIAFERRO Judge.

This suit involves alleged rights of the plaintiff under five life endowment insurance policies and under one combination life insurance, sick and accident benefit policy, all issued by the defendant at plaintiff's instance.In four of the life endowment policies, plaintiff is designated as beneficiary.One of these policies is on the life of a brother; one on the life of a sister; one on the life of a daughter, and in the other, plaintiff's mother is the insured.The fifth life endowment policy was issued to plaintiff.A sister is named beneficiary therein.The sixth policy was issued to plaintiff and her mother is named beneficiary under the life insurance feature thereof.All of said policies excepting the sixth, issued during the period between October, 1928 and November, 1938.All premiums thereon to and including September 5, 1939, were paid by plaintiff.None thereafter was paid by any one.

The sickness and accident benefit policy contains these stipulations:

"Weekly benefits for sickness will only be paid for each period of seven consecutive days that the insured is, by reason of illness, necessarily confined to bed and that he shall remain under the professional care of a duly licensed and practicing physician.

"The insured shall not be entitled to any benefits for sickness or accident under this Policy unless a certificate by a regularly licensed and practicing physician (satisfactory to the Company) showing the cause of the sickness or injury shall have been furnished the Company or its authorized agents within seven days from the date of physician's first visit or treatment; and benefits for sickness or accidental disability for any subsequent week shall not be claimable unless at the beginning of each subsequent week for which such benefit is claimed a similar certificate is furnished.No liability for sickness or accidental disability shall begin to accrue under this Policy for any week until such a certificate is received as above set forth."

Plaintiff was taken sick on or about August 28, 1939.She summoned Dr Huggins, a practicing physician in the City of Shreveport who found malaria to be the superinducing cause of her illness and prescribed for her accordingly.Plaintiff had Dr. Huggins fill out and sign a certificate in printed form, furnished by defendant, purporting to cover the facts of her case, which she mailed to defendant with request for payment of weekly sick benefits.This certificate was received by defendant in due course.However, it was found to be deficient in several respects, which plaintiff admits, and for this reason it was returned to plaintiff with the request that she have it properly filled out and returned to defendant.This was not done.She says she forgot about it.It was not introduced in evidence.No other physician attended plaintiff until Dr. Harris was called in.

On September 21st, plaintiff was visited by Dr. Harris, who diagnosed her ailment as hapatitis malaria.Her temperature was 99.2 and pulse rate 108.Dr. Harris also filled out and signed a regular printed form of certificate giving the facts of plaintiff's illness as he found them to exist.He did not state in the certificate nor did he testify that this slight temperature would necessarily confine plaintiff to bed.This certificate was also sent to defendant with request for payment of sick benefits.The request was refused on the alleged ground that plaintiff's illness did not as a fact confine her to bed.This suit followed.

Plaintiff seeks firstly to recover sick benefits for the period of her alleged illness, to-wit: Seven weeks at the rate of $5 per week, plus statutory penalty and attorney's fee of $150; and, secondly, to recover the premiums paid by her on the life endowment and life insurance policies with interest.This phase of her suit is predicated upon the fact, as alleged, that defendant breached all of said contracts by refusing to accept from her the premiums due thereon after September 5, 1939.

Defendant denies that the life endowment and life insurance policies were breached or became ineffective because of any act or acts on its part or on the part of any of its agents or representatives; that plaintiff at no time offered to pay any of the premiums on any of said policies after September 5, 1939, though repeatedly solicited to do so, and, therefore, there was not any refusal by its agents or representatives to accept from her said premiums; that said policies simply lapsed for non-payment of the weekly premiums due thereon and as stipulated therein.

As regards the demand for sick benefits, defendant avers that plaintiff furnished it with only one physician's certificate in the form and as required by the policy as a condition precedent to her right to demand payment thereof and that payment was declined because plaintiff, for the week covered by the said certificate, was not confined to bed, such confinement, under the terms of the policy, being indispensable to the right to recover said benefits.

The trial court gave judgment for plaintiff for sick benefit for one week, or $5, plus penalty of like amount and for $50 attorney's fee.In all other respects her demand was rejected.Both parties appealed.

Plaintiff assigns as error in the judgment the rejection of her demand to any extent.Defendant argues that no judgment at all should have been rendered against it.In the alternative, it contends that the attorney's fee is excessive and that the penalty should not have been imposed.

Plaintiff and all others who testified in this case are members of the colored race.Therefore, the credibility of neither enjoys any advantage over that of the other on racial account.

Defendant's agent called at plaintiff's residence each Tuesday to collect premiums due under the policies involved herein.She made no payments otherwise.It was the rule and custom of defendant to thus collect premiums.Plaintiff testified that after September 5, 1939, no one representing defendant came to her home to collect the premiums and for this reason she paid none after that date.She says that had they come to see her as was their custom, she would have paid the premiums.She alleged, however, that defendant refused to accept her offer to pay the premiums.The sick and accident benefit policy, under its own terms, did not lapse until four weeks' premiums were in arrears.Her testimony to the effect that payments were not solicited of her by defendant's agents after September 5th is mildly corroborated by that of a colored man who leased from her a room in which he lived.

There is authority for the proposition that when the insurer's agent regularly calls upon the insured for payment of premiums, the insured is within his rights to act upon the custom thus established.He is not required to make such payments otherwise unless prior notice is given him of the intention to abandon the custom.Riley v. Life & Casualty Ins. Co. of Tennessee, 184 S.C. 383, 192 S.E. 394;Cooley's Briefs on Insurance, 2d Ed., Vol. 4, page 3591.

However in the instant case, the testimony convinces us, as it doubtless did the lower court, that plaintiff's failure to pay the premiums as they matured was not due to lack of request therefor from defendant's agents.

A negro man by the name of Hardy Walker, up to and including September 5 1939, acted as defendant's agent in collecting the...