Locomotive Engineers' Mut. Life & Acc. Ins. Co. v. Meeks

• Decision Date: 14 April 1930
• Docket Number: 28524
• Citation: 157 Miss. 97,127 So. 699
• Parties: LOCOMOTIVE ENGINEERS' MUT. LIFE & ACC. INS. CO. v. MEEKS
• Court: Mississippi Supreme Court

127 So. 699

157 Miss. 97

LOCOMOTIVE ENGINEERS' MUT. LIFE & ACC. INS. CO. v. MEEKS

No. 28524

Supreme Court of Mississippi

April 14, 1930

Division B

1 INSURANCE. Liability. "Loss of sight." Extent. Liability under policy providing for indemnity for "loss of sight" attaches where insured has lost vision to extent he cannot perceive and distinguish objects.

In an insurance policy providing for indemnity for the total and permanent loss of sight in one or both eyes, the company becomes liable, under the said policy, where the insured has lost the vision of one eye to the extent that he cannot perceive and distinguish objects, although he is able to distinguish between light and darkness and can see the form of objects but has no ability to distinguish them, and has lost the practical use of his eye.

2 INSURANCE. Construction of policy. Intent. Practical interpretation. Insurance policy must be given practical rather than literal interpretation; interpretation of insurance policy must be reasonable and relative and favorable to insured; insurance policy must be interpreted as to give effect to transaction and carry out manifest purpose of contract.

An insurance policy must be given a practical rather than a literal interpretation. The interpretation must be reasonable and relative and not literal and must be construed favorable to the insured. It must be given an interpretation which will stand the test of honesty of purpose in their meaning, and which will give effect to the transaction between the parties in making the transaction so as to carry out the manifest purpose of the contract.

3 INSURANCE. Proof of loss. Pleading. Evidence. Insurer must plead specifically failure to furnish proper proof of loss after allegations of performance of conditions precedent to recovery; proof showing that proof of loss was filed with insurer as required by policy is sufficient, in absence of pleading challenging sufficiency (Hemingway's Code 1927, section 566).

Section 566, Hemingway's 1927 Code (section 769, Code of 1906), providing that "in pleading the performance of conditions precedent, the plaintiff or defendant may aver generally that he duly performed all the conditions on his part; and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition precedent the performance of which he intends to contest" requires a defendant to plead specifically a failure to furnish proper proof of loss to an insurance company where the plaintiff, in suing upon the policy of such insurance company, has averred that he has performed the conditions precedent to recovery thereof, and where there is no plea conforming to the statute and the proof shows that proof of loss was filed with the company as required by the policy, the proof is sufficient to sustain the action upon such conditions.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county HON. J. D. FATHEREE, Judge.

Suit by Jesse C. Meeks against the Locomotive Engineers' Mutual Life & Accident Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Judgment affirmed.

Jacobson & Cameron, of Meridian, for appellant.

The mere fact that the insured loses sight to the extent that he cannot perform his duties as a trainman does not constitute total and permanent blindness.

Kane v. Brotherhood of Railroad Trainmen (Neb.), L.R.A. 1918F, 1037; Holcombe v. Grand Lodge B. R. T., L.R.A. 1917B, 107.

Mere light perception, that is the ability to distinguish light from darkness, is not sufficient to remove a case from the usual and expressed definition of total blindness; but a man has not suffered the total loss of sight if he has what the occulist and medical science term as light projection, or the ability to discern and locate different objects.

Dahlin v. Blind Commission, 262 S.W. 420; Williams v. Brotherhood of Locomotive Firemen & Enginemen, 298 S.W. 535.

The language "entire loss of sight" and the word "entire" does not mean the same as the word "total" but the word "total" should be given the usual, ordinary and accepted meaning; that is to say, loss of all sight.

Tracey v. Standard Accident Insurance Company, 109 A. 490; Travelers Association v. Rogers, 163 S.W. 421.

Victor W. Gilbert, of Meridian, for appellee.

The ability to perceive light and objects but no ability to distinguish and recognize objects, is not sight, but blindness. So would it be, though there were intermittent flashes of the latter ability. To no practical or useful extent would it serve the will, need or pleasure.

Murray v. Aetna Life Ins. Co., 213 F. 285; Metropolitan Cas. Ins. Co. v. Cato, 116 Miss. 114; Equitable Life Assurance Association v. Serio, 124 So. 485; International Trav. Ass'n. v. Rogers, 163 S.W. 421; Brotherhood of Railroad Trainmen v. Britton, 292 S.W. 286.

Failure to give notice and furnish proof of loss must be specially pleaded to be available as a defense.

Woodmen of the World v. Grace (Miss.), 28 So. 832.

Appellant received the proofs of loss and accepted and retained them and this constitutes a waiver of any objection to the proofs.

45 C. J. 243, sec. 187.

Indemnity provisions of policies of insurance are to be given a reasonable construction. The terms "total loss of eye sight," "total blindness," "total disability," "total loss of foot or arm" etc., means a total loss for all practical purposes, and does not mean that the eye must have no vision at all, unless the policy expressly so provides.

Note to 18 A.L.R. 1339; Metropolitan Cas. Ins. Co. v. Cato, 116 Miss. 114; Equitable Life Assn. Asso. v. Serio, 124 So. 485; International Trav. Ass'n. v. Rogers, 163 S.W. 421; Murry v. Aetna L. Ins. Co., 243 F. 285; Ozark Mutual L. Ass'n. v. Winchester, 243 P. 735; Business Men's Mutual v. Lockhart, 291 S.W. 658; Brotherhood R. R. Trainmen v. Britton, 292 S.W. 287; Pan American Life Ins. Co. v. Terrell, 29 F.2d 460; Continental Casualty Co. v. Linn, 10 S.W.2d 1079; Berset v. N.Y. Life Ins. Co., 220 N.W. 561.

Argued orally by Chas. B. Cameron, for appellant, and by Victor M. Gilbert, for appellee.

OPINION

Ethridge, P. J.

Jesse C. Meeks filed suit in the circuit court against the appellant upon a policy, or certificate, issued to him by the appellant. He alleged that the defendant is a mutual Life and Accident Insurance Company, and as such, issues policies of insurance against the loss of life, limbs, eyes, and other injuries sustained by its policy-holders and to that end is authorized to do and is doing business in the state of Mississippi. That the plaintiff is a member of said defendant association in good standing, and has been since the 9th day of February, 1910. That the defendant operates under a constitution and bylaws, and in and by virtue of section 35 of said by-laws covering its insurance department it is provided as follows:

"Sec. 35. Any member of this Association losing, by amputation, a hand at or above the wrist joint, a foot at or above the ankle, or sustaining the total and permanent loss of sight in one or both eyes, shall receive the full amount of his insurance. In case of permanent and total loss of sight proof of same must be made out on a form furnished by the Association and signed by two (2) experienced oculists. Where the eye or eyes have not been removed from the socket, proof of blindness will be filed at home office for one year from the date of examination, at which time the member will be required to furnish additional and final proof, signed by two (2) experienced oculists certifying to the total and permanent blindness of said member. The Association reserves the right to designate one (1) of the oculists for each examination and to require all certificates sworn to, and the examining oculists may say whether or not, in their judgment, the claimant is totally and permanently blind; also state cause of blindness. This Association will not recognize a claim for the insurance of any certificate holder for impaired eyesight, or color blindness, but for total and permanent blindness only, in one or both eyes."

A copy of the certificate, or policy, was attached to the declaration. It was then alleged that the plaintiff, who is a locomotive engineer in the employment of the Mobile & Ohio Railroad Company and under duty to operate locomotives of said company, did on the 22d day of October, 1927, in the course of his employment and while on duty as such engineer, suffer an injury to his eye causing him to be totally and permanently blind in the said eye, and by reason thereof has lost the total sight of his left eye. That by virtue of the said certificate, the defendant became indebted to him in the sum of one thousand five hundred dollars. He then alleged that on or about the first day of May, 1928, when the plaintiff realized that he was blind in his left eye, he filed with the defendant proof of the loss thereof, and did on or about the 15th day of May, 1929, or more than one year after the filing of his said first proof of loss, he filed the second proof of loss as required by the constitution and by-laws of said defendant association, which first and second proofs of loss were made out on a form furnished by the association and signed by Dr. C. P. Mosby and Dr. H. L. Arnold, two experienced oculists residing in Meridian, Mississippi.

The bill further alleged that on the 22d day of October, 1927 the plaintiff was a member in good standing of the said defendant association and of the Sowashee Division, No. 593 of the association, and had paid all dues and assessments owing by or required of him, and is still in good standing with all dues and assessments paid in said association, but notwithstanding the said injuries and the...