Metropolitan Life Ins. Co. v. Lindsey

• Decision Date: 28 October 1940
• Docket Number: 34258
• Citation: 198 So. 282,189 Miss. 600
• Court: Mississippi Supreme Court
• Parties: METROPOLITAN LIFE INS. CO. v. LINDSEY

198 So. 282

189 Miss. 600

METROPOLITAN LIFE INS. CO. v. LINDSEY

No. 34258

Supreme Court of Mississippi

October 28, 1940

APPEAL from the circuit court of Jones county, HON. F. BURKITT COLLINS, Judge.

Action by Mack Lindsey against the Metropolitan Life Insurance Company to recover total permanent disability benefits under an employees' group insurance policy. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed.

Reversed and cause dismissed.

Wells Wells & Lipscomb, of Jackson, and Welch & Cooper, of Laurel for appellant.

The defendant was entitled to a directed verdict. The defendant had filed a special plea of late notice in bar of the plaintiff's action. On the former trial this plea was held to be good against demurrer. The plaintiff then filed a replication to the special plea, taking issue thereon. The proof in support of the plea showed that the Gilchrist-Fordney Company had gone out of business; that its charter had been surrendered; that many of its records had been destroyed; that the saw mill foreman under whom plaintiff worked, the mill superintendent, the outside superintendent, the mill wright, the shipping clerk, the master mechanic, the mill blacksmith, and the foreman of the green chain and other persons thus calculated to know of the physical condition of plaintiff, are now in Oregon. Other employees are dead or scattered to the four corners of the world. In other words, as we see it, the material allegations of the special plea were established by competent testimony and were undisputed. The fact that some of the former employees of the Gilchrist-Fordney Company are here, does not prove anything. It must be obvious to the court that if defendant had known at any time prior to July 27, 1937, that plaintiff was claiming a total disability since sometime in 1932, that defendant would have been in infinitely better position to establish its defense.

In consideration of this case when it was first before this court, the court speaking through Mr. Justice Anderson, said "It follows from what has been said that the judgment must be reversed and the cause remanded for another trial. The court erred in sustaining the demurrer to the plea. If the plea is established without substantial conflict in the evidence, appellant will be entitled to a directed verdict. Putting it differently: if on another trial it should appear to the court, without any substantial conflict in the evidence, that it was unreasonable and unfair to appellant for appellee to delay nearly five years in making proof of disability, a verdict should be directed for appellant. On the contrary, if there is substantial conflict in the evidence as to that issue, its decision should be left to the jury." Metropolitan Life Ins. Co. v. Lindsey, 184 Miss. 359, 185 So. 573.

Now was it unfair for the plaintiff to wait from November 15, 1932 until October, 1937, before making proof of disability. If it was unfair and placed an undue burden on the defendant, then a verdict should have been directed for the defendant. Who can doubt that it was imcensely core difficult for defendant to ascertain the facts as to plaintiff's condition five years prior to notice under the admitted facts of this case. It will be remembered that plaintiff admitted that he worked but he undertook to show that his work was not substantial. Plaintiff seems to have gotten over to the jury the fact that his job was in the nature of a pension, that he was a piddler and that his employer so recognized. How would have been the best way to refute this? Manifestly, by the mill foreman, mill superintendent and foreman of the green chain. We briefed this feature of the case at length on the former appearance of the case and we do not repeat the argument here. We accept the holding of the court on the first trial of this case and we invoke the holding of the court, believing that we have shown that the burden of the defendant was unduly and unfairly increased by the failure of the plaintiff to make within a reasonable time proof of his disability.

Leonard B. Melvin, of Laurel, for appellee.

The appellee is unable to understand how there could be any better authority presented to this court than the opinion of this court, written by this court in the identical case that is now before the court, involving the same propositions, with the exceptions of the pleadings, in that in the former trial the special plea was demurred to and sustained, which this court held was error. In the second trial the plaintiff filed its replication to the special plea and issue was joined. This is the only difference between the two trials. The same insurance policy was involved and almost identical evidence introduced by the same witnesses.

When this case was before this court before, this court then said: "What is proof within a reasonable time is ordinarily a question for the jury. 'But there must come a point where the matter becomes one for the decision of the court, where a delay, by reason of its duration and lack of attendant excusing circumstances, is clearly unreasonable, it is the duty of the court so to declare.' Metropolitan Life Ins. Co. v. Walton, 83 S.W.2d 278, and the authorities cited in the opinion . . . It follows from what has been said that the judgment must be reversed and the cause remanded for another trial. The court erred in sustaining the demurrer to the plea. If the plea is established without substantial conflict in the evidence, appellant will be entitled to a directed verdict. Putting it differently: If on another trial it should appear to the court, without any substantial conflict in the evidence, that it was unreasonable and unfair to appellant for appellee to delay nearly five years in making proof of disability, a verdict should be directed for appellant. On the contrary, if there is substantial conflict in the evidence as to that issue, its decision should be left to the jury."

Metropolitan Life Ins. Co. v. Lindsey, 185 So. 573; Universal. Life Ins. Co. v. Ford, 180 So. 823; N.Y.Life Ins. Co. v. Duncan, 115 So. 43; American Bankers Ins. Co. v. White, 158 So. 346; Provident Life and Ace. Ins. Co. v. Anding, 109 So. 670; Killings v. Met. Life Ins. Co., 192 So. 577.

When this case was before this court on a former trial this court held, if I am able to understand the language of this court, in Metropolitan Life Insurance Company v. Lambert, 128 So. 750, that this would be a jury case if there was an issue of fact on the special plea filed or unless the appellant established its plea without substantial conflict on another trial. Now the question before this court is not whether or not the appellee is totally and permanently disabled, because that issue was properly submitted to the jury and was decided by the jury in favor of the appellee, but the question before this court is--did the appellant establish its special plea without substantial conflict in the evidence. It is the contention of the appellee here that appellant utterly failed to establish its plea. Not only did appellant fail to establish its plea, but appellant utterly failed to introduce any testimony whatever to substantiate its plea and on the contrary, the appellee by Mr. Addison showed beyond a doubt that it was not unreasonable and unfair to appellant for appellee to delay nearly five years in making proof of disability, but on the other hand showed that the appellant was in just as good a position on the date of the trial as they would have been had the trial been four or five years earlier.

McGowen, J., Ethridge, P. J., specially concurring.

OPINION

McGowen, J.

This is a second appeal of this case, it having been before the court on appeal by the Metropolitan Life Insurance Company and reported in 184 Miss. 359, 185 So. 573. In the report of that case, the provisions of a group policy of insurance issued by the insurance company to ...