Massie v. Washington Fidelity Nat. Ins. Co

• Decision Date: 18 March 1929
• Docket Number: 27779
• Citation: 121 So. 125,153 Miss. 433
• Court: Mississippi Supreme Court
• Parties: MASSIE v. WASHINGTON FIDELITY NAT. INS. CO

121 So. 125

153 Miss. 433

MASSIE v. WASHINGTON FIDELITY NAT. INS. CO

No. 27779

Supreme Court of Mississippi

March 18, 1929

Division B

INSURANCE. Insurer did not waive stipulation that policy should not cover illness occurring within thirty days from date by furnishing forms for proofs.

Insurer by furnishing forms on which to make proofs under combination sick benefit and accident policy theretofore issued to insured, did not waive stipulation in policy that it should not cover illness occurring within thirty days from its date so as to be estopped to take advantage thereof.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Sunflower county, HON. S. F. DAVIS Judge.

Action by J. R. Massie against the Washington Fidelity National Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Affirmed.

Frank E. Everett, for appellant.

Chapman, Moody & Johnson, for appellee.

OPINION

ANDERSON, J.

Appellant brought this action in the court of a justice of the peace of Sunflower county against appellee on a combination sick benefit and accident policy theretofore issued to him by the appellee to recover one hundred fifty dollars. There was a trial in the justice of the peace court resulting in a judgment in appellee's favor. From that judgment appellant appealed to the circuit court of Sunflower county, where there was a trial de novo, and a directed verdict and judgment for the appellee. From that judgment, the appellant prosecutes this appeal.

The question is whether the court erred in directing a verdict for the appellee; and that question is solvable by a consideration of whether, taking the facts as established which the evidence for appellant proved or tended to prove, there was an issue of fact for the jury to determine.

The policy sued on was dated July 11, 1927. The appellant was taken ill on August 9, 1927, and, therefore, within less than thirty days from the date of the policy. He sued for sick and hospital benefits under stipulations H and K in the policy, covering a period of two and one-half months, the illness, as stated, having begun within thirty days after the date of the policy and continued during two and one-half months thereafter. There was pasted to the policy a rider. We quote below stipulations H and K, and the rider, in the order stated:

"(H) At the rate of fifty and 00/100 dollars per month for the number of consecutive days, after the first week and not exceeding six months, that the Insured is necessarily, totally and continuously confined within the house and is under the care of and visited in the house at least once in each seven days by a legally qualified physician by reason of sickness or disease that is not venereal in character and is contracted and begins during the life of this policy and after thirty days from date hereof."

"(K) The indemnity otherwise payable under Paragraphs A and H hereof shall be doubled for such time, not exceeding two months, as the Insured is confined by reason of sickness or accident covered hereunder, in a regularly incorporated and licensed hospital the charges of which he personally is required to pay."

"In consideration of the payment of the premium of five and 25/100 per month the words 'after the first week' are hereby stricken from the illness indemnity clause of policy No. PC-9777 to which this rider is attached and made a part thereof, modifying said policy so as to provide indemnity for the first week's illness disability."

Appellant concedes that the policy does not cover sick and hospital benefits resulting from an illness beginning within thirty days from its date, but contends that, on account of what occurred between the parties, to be immediately stated, the appellee is estopped to take advantage of that stipulation of the policy. The facts relied on as constituting an estoppel are as follows: Appellant's illness began on August 9 1927. He attempted to give the appellee notice of his illness the latter part of September, 1927, but the notice having been improperly addressed was not received by the appellee. The appellee did receive notice of appellant's illness on October 3, 1927, and received proofs of appellant's illness and claim therefor on blank forms furnished by the...