Massachusetts Mut. Life Ins. Co. v. England

• Decision Date: 30 January 1937
• Citation: 100 S.W.2d 982,171 Tenn. 104
• Parties: MASSACHUSETTS MUT. LIFE INS. CO. v. ENGLAND.
• Court: Tennessee Supreme Court

100 S.W.2d 982

171 Tenn. 104

MASSACHUSETTS MUT. LIFE INS. CO. v. ENGLAND.

Supreme Court of Tennessee.

January 30, 1937

Error to Circuit Court, White County; O. K. Holladay, Judge.

Action by Luther G. England against the Massachusetts Mutual Life Insurance Company. To review an order of the Court of Appeals affirming a judgment for plaintiff, defendant brings certiorari.

Reversed and remanded.

McKINNEY Justice.

This is a suit to recover disability benefits on a policy issued by plaintiff in error to defendant in error in 1922. The case was tried before the circuit judge without a jury, who rendered a judgment in favor of defendant in error. Upon appeal, the Court of Appeals affirmed the judgment of the trial court. This court granted the writ of certiorari, and the case has been argued.

The applicable provisions of the policy are as follows:

"If the insured, after payment of premiums for the first policy year, and before default in the payment of any subsequent year's premium, and before attaining the age of 60 years, shall furnish due proof to the Company at its Home Office that he has become wholly and permanently disabled so that he is and will be permanently, continuously, and wholly prevented thereby from performing any work, or engaging in any occupation, for compensation or profit, and that such disability has existed continuously for not less than sixty days the Company will

"(1) waive the payment of all premiums becoming due under this policy after the expiration of the then current policy year;

"(2) pay to the insured if then living and such disability shall continue, one per cent. of the face of this policy exclusive of any paid-up additions, and a like amount each month thereafter during the continuance of said total disability of the insured prior to the maturity of the policy.

"The amount of this policy payable at maturity either as an endowment or as a death claim shall not be reduced by any premiums waived or payments made under this provision.

"Provided that, notwithstanding proof of disability may have been accepted by the Company as satisfactory, the insured shall at any time, on demand, furnish due proof to the company of the continuance of such disability, and if the insured shall fail to furnish such proof all premiums thereafter falling due must be paid in conformity with the conditions of this policy, and the annuity payments shall cease."

In October, 1933, defendant in error and his physician, Dr. William Johnson, filled out and submitted to the company proofs of claim for total and permanent disability, in which it was specifically stated that the disability was due to "neuritis, hemorrhoids, chronic nasal pharyngeal catarrh, chronic bronchitis, attacks of hepatitis." In November, following, the company denied liability on the ground that it did not feel "that a presumption of permanency of total disability is justified at this time." Thereafter, in December, 1933, the defendant in error instituted suit. In his declaration he specifically averred that his disability was due to "chronic bronchitis, laryngitis, hepatic cirrhosis, hypertrohic rhinitis, neuritis, hemorrhoids." It will be observed that no mention of tuberculosis was made in either the proofs of disability or the declaration. On January 2, 1934, Dr. R. E. Lee Smith examined defendant in error and diagnosed him as having tuberculosis. On January 13, Dr. W. C. Officer made the same diagnosis. Several days thereafter defendant in error took a nonsuit because of a technical error, and on March 7, 1934, instituted a second suit setting forth in the declaration the same causes of disability alleged in his prior declaration, and in addition thereto he included bilateral pulmonary tuberculosis.

Before the case was at issue, the company forwarded a registered letter to defendant in error, which he received, in which it advised him that the allegations of tuberculosis in his declaration constituted the first notice it had received of any claim for such disability, and requested him to fill out claim blanks, which it enclosed, stating therein the true nature of his disability, and stated that upon their reception it would investigate his claim and give it every consideration. Defendant in error ignored this request and proceeded with the prosecution of his suit.

On the trial all the testimony with respect to tuberculosis was excepted to by the insurer upon the ground that the filing of proofs of disability was a condition precedent to instituting suit, and such proofs did not include that disease as one of the causes of his disability. The exceptions were overruled by the trial court, and his action in admitting such testimony was affirmed by the Court of Appeals. It is quite evident that the tubercular condition of defendant in error entered very largely in the finding of total permanent disability by the physicians, the trial court, and the Court of Appeals. With this testimony excluded, we are unable to say what the testimony of the physicians would have been, or what conclusions the trial court and the Court of...