McGifford v. Protective Life Ins. Co., 6 Div. 398.

• Decision Date: 26 October 1933
• Docket Number: 6 Div. 398.
• Parties: McGIFFORD v. PROTECTIVE LIFE INS. CO.
• Court: Alabama Supreme Court

151 So. 349

227 Ala. 588

McGIFFORD v. PROTECTIVE LIFE INS. CO.

6 Div. 398.

Supreme Court of Alabama

October 26, 1933

Rehearing Denied Dec. 14, 1933.

Appeal from Circuit Court, Jefferson County; F. Loyd Tate, Judge.

Action to recover disability benefits under a policy of life insurance by Bob McGifford against the Protective Life Insurance Company. From a judgment of nonsuit, plaintiff appeals. Transferred from Court of Appeals.

Affirmed.

BROWN J., dissenting.

Ross Bumgardner, Ross & Ross and Edward H. Saunders, all of Bessemer, for appellant.

Huey Welch & Stone, of Bessemer, and Cabaniss & Johnston, of Birmingham, for appellee.

KNIGHT Justice.

Bob McGifford, appellant here, filed his suit in the circuit court against the Protective Life Insurance Company, to recover the sum of $500, and interest thereon, as and for disability benefits, alleged to be due him under a "group policy of life insurance and certificate issued in accordance with the group policy." The plaintiff stated his case in two counts.

The cause was tried on the plea of the general issue, with leave to give in evidence any matter which, if well pleaded, would be admissible in defense of the action, and with like leave to plaintiff to give in evidence any matter which, if well pleaded, would be admissible in reply to such defensive matter, to have effect as if so pleaded.

On account of adverse rulings of the court on exclusion of certain evidence, the plaintiff took a nonsuit, with bill of exceptions.

The group policy of insurance was entered into by and between the appellee, an insurance company, and the Pioneer Insurance Club of the Republic Steel Corporation's employees, on December 1, 1929, and on the same day, the appellee issued to the appellant a certificate of insurance in the sum of $500 upon his life; he being at the time an employee of the Republic Steel Corporation, and a member of the Pioneer Insurance Club. The certificate so issued to the appellant appears in the report of the case.

On the trial, the plaintiff read in evidence the group policy of insurance.

The plaintiff also offered in evidence the above-mentioned certificate. The defendant objected to the introduction of the certificate in evidence upon the grounds: "It is not shown that any life insurance was in full force and effect, or that the certificate was in full force and effect at the time the proof of loss was made, and it is irrelevant, incompetent, illegal and immaterial at this time." The court sustained the objection, and plaintiff duly reserved an exception.

It was admitted that the plaintiff had paid all premiums under his certificate of insurance and the group policy through the month of January, 1932.

It appears from the evidence in the cause that the plaintiff ceased to be an employee of the Republic Steel Corporation after January 12, 1932, that no premiums falling due on said policy since January 31, 1932, have been paid, and that if the policy-"Master Policy"-was still in force since 1932, it did not include the plaintiff as a member of the group covered by the policy, since January, 1932.

Pertinent provisions of the policy are here set out:

"Members are automatically insured in accordance with the terms of the plan of insurance above, subject to the terms of this policy. Any employee of the Republic Steel Corporation, at the time this policy becomes effective, shall be eligible for insurance hereunder, provided he becomes a member of the club on or before January 1, 1930. Insurance will be effective at 12:01 A. M. on the first day of the month following the date application is approved by the club. * * *

"The insurance on any member shall cease at the end of the month of the termination of his membership. If a member is disabled, given a leave of absence, or temporarily laid off, the membership need not be considered terminated, provided the premium applicable to that member is paid to the company as provided herein. * * *

"In any event any member who ceases to be in the employ of the Republic Steel Corporation, shall cease to be insured hereunder at the end of the month of such termination. * * *

"If any member insured under this policy shall furnish this company with due proof that before having attained the age of sixty years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, the company will pay to such member in full settlement of all obligations hereunder as to such member's life, the amount of insurance in force hereunder on such member at the time of the approval by the company of the proofs as aforesaid. This amount will be paid either in one sum six months after proof of disability has been established or in installments as hereinafter provided, beginning immediately after proof of disability has been established. For each $1000.00 of insurance hereunder the amount of each installment shall be in accordance with the following table."

The contention of appellant is that, the permanent and total disability of the appellant having occurred in the month of December, 1931, or January, 1932, while the policy of insurance was admittedly in force, the status of the insured as being then entitled to the benefits provided for in the last-quoted clause of the policy was thereby fixed, and the provision for submitting to the company, for its approval the proof of such total and permanent disability, was a condition subsequent, and could be complied with by the insured within a reasonable time thereafter. The appellant further takes the position that there is such ambiguity in the contract in this particular that it calls for and requires judicial construction. In this view of the situation, the appellant brings to the attention of the court the familiar and well-understood rules of construction of insurance contracts which this court, in accord with other courts, has uniformly applied in the construction of such contracts, when ambiguity or uncertainty occurs in the written memorial of the parties. These rules are too well understood to require restatement here. They...