Mut. Ben. Health & Accident Ass'n v. Hulme

• Court: Georgia Court of Appeals
• Writing for the Court: SUTTON
• Citation: Mut. Ben. Health & Accident Ass'n v. Hulme, 197 S.E. 85, 57 Ga.App. 876 (Ga. App. 1938)
• Decision Date: 04 May 1938
• Docket Number: No. 26760.,26760.
• Parties: MUTUAL BEN. HEALTH & ACCIDENT ASS'N. v. HULME.

57 Ga.App. 876

197 S.E. 85

MUTUAL BEN. HEALTH & ACCIDENT ASS'N.

v.HULME.

No. 26760.

Court of Appeals of Georgia, Division No. 2.

May 4, 1938.

Syllabus by the Court.

1. The provisions of a policy of insurance requiring the furnishing of proof of loss to the home office of the insurer within ninety days after the death of the insured from accidental means, and making a strict compliance therewith a condition precedent

86.

to recovery, are valid, and the beneficiary is bound thereby unless the circumstances are such as to excuse a delay in complying therewith.

2. The facts set forth in the amendment to the petition do not show a legal excuse for the failure of the beneficiary to furnish proof of loss within the time required by the policy of insurance, and the court erred in overruling the demurrer of the defendant; and as the petition did not set forth a cause of action, the court also erred in overruling the renewed general demurrer of the defendant.

Error from City Court of Elberton; W. D. Tutt, Judge.

Suit by Mrs. J. T. Hulme, as beneficiary, against the Mutual Benefit Health & Accident Association on a policy of health and accident insurance to recover for the alleged accidental death of insured. To review a judgment overruling its general and special demurrers, defendant brings error.

Reversed.

Mrs. J. T. Hulme, as beneficiary, brought suit against Mutual Benefit Health & Accident Association on a policy of health and accident insurance to recover for the alleged accidental death of Hoyt Pulliam, the petition alleging that all premiums had been fully paid and that the insured died on July 29, 1936, his death being caused, independently of all other causes, from bodily injuries sustained during the term of the policy through purely accidental means, by an embolism, and that at the time of his death the policy was of the value of $825, for which suit was brought; that for a long time after the insured's death, and until about April 1, 1937, the cause of his death was unknown to her, but that the fact of his death was known to both the plaintiff and the defendant immediately after it occurred; that immediately upon discovering the cause of the insured's death, and the accidental nature thereof, she, on April 12, 1937, caused notice of said death to be given the defendant by her attorney, a copy of said letter being attached to the petition as Exhibit B and made a part thereof; that in response to said letter and notification, her attorney, J. T. Sisk, received a letter dated April 15, 1937, a copy of which was attached to the petition as Exhibit C and made a part thereof; that on April 22 1937, a further letter dated April 15, 1937, was received by her attorney from the defendant, a copy being attached to the petition as Exhibit D and made a part thereof; that the defendant arbitrarily declined to supply blanks to the plaintiff upon which to submit proof of loss under the policy of insurance and proof of the accidental death of the insured, and refused to investigate plaintiff's claim under the policy, and refused to pay the same, and that the refusal to investigate the claim or to furnish the required and necessary blanks for making the claim was bad faith, and that she sues for an additional sum of 25 per cent. of the amount due on the policy, that is, $206, as damages, and for the further sum of $150 attorney's fees.

The policy, a copy of which was attached to the petition as Exhibit A, contained among other provisions the following: "Part A. If the insured shall sustain bodily injuries as described in the insuring clause, which injuries shall, independently and exclusively of disease and all other causes, continuously and wholly disable the insured from the date of the accident and result in any of the following specific losses within thirteen weeks, the Association will pay: For loss of life......$750, " etc. "4. Written notice of injury or of sickness on which claim may be based must be given to the Association within twenty days after the date of the accident causing such injury or within ten days after the commencement of disability causing such sickness. In event of accidental death immediate notice thereof must be given to the Association. 5. Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the Association at Omaha, Nebraska, or to any authorized agent of the Association, with particulars sufficient to identify the insured shall be deemed to be notice to the Association. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible. 6. The Association upon receipt of such notice will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss. If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofsof loss, written proof covering the occurrence, character, and extent of the loss for which claim is made. 7. Affirmative proof of loss must be furnished to the Association at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the Association is liable, and in case of claim for any other loss within ninety days after the date of such loss. Strict compliance on the part of the insured and beneficiary with all the provisions and agreements of this policy, and the application signed by the insured, is a condition precedent to recovery and any failure in this respect shall forfeit to the Association all right to any indemnity."

The letter from the plaintiff's attorney to the defendant, as shown by Exhibit B, was addressed to its office at Atlanta, Ga., and read as follows: "It has come to the knowledge of Mrs. J. T. Hulme, beneficiary of Hoyt Pulliam, under policy Number 3-s-11188, that the death of the said Hoyt Pulliam was produced by an embolus or blood clot produced through purely accidental means, resulting directly and independently of all other causes from bodily injuries sustained during the life of the policy, and that she is, therefore, entitled to recover under said policy the sum of $825 for the accidental death of the insured as provided by the policy. This is to request that in the event proofs already submitted to the company are not sufficient to indicate to the company their liability, or non-liability, forms be forwarded upon which further proof of claim may be submitted, unless the company wishes to decline payment upon the proofs already submitted. Please let us hear from you promptly in this matter and oblige." This letter was dated April 12, 1937.

The reply to that letter, as shown by Exhibit C, was as follows: "Your letter of April 12th, regarding the above, was received but we are unable to give it the attention it should have because all of the papers concerning this claim are on file in the Home Office. We are forwarding your letter to the Home Office where it will receive prompt attention, and you may feel assured that you will receive a reply in due course." This letter was dated April 15, 1937. The reply from the Home Office of the defendant under date of April 22, 1937, as shown by Exhibit D, was as follows: "Your letter of April 12 to Mr. Codding has been referred to this office. We have carefully gone through the complete file covering the claim. All correspondence and all proofs of loss which we received attributed the case of Mr. Pulliam's disability and his ultimate death solely to natural causes. Payment was made and accepted without question upon that basis. The contract which Mr. Pulliam had required notice of an accidental injury to be given within twenty days. It required notice of death due to accidental means to be given immediately. It required proofs of loss to be filed within ninety days of death. None of these conditions have been complied with. It would be impossible for the Association to waive these requirements at this late day, and we are, therefore, not furnishing blanks, nor attempting to investigate or determine the correctness of the contention made in your letter."

The defendant demurred generally to the petition on the ground that it did not set forth a cause of action, and also specially demurred to the allegation that the death of the insured was caused, independently of all other causes, from bodily injuries sustained during the term of the policy through purely accidental means by an embolism, on the ground that it was a conclusion of the pleader, and that the plaintiff should have alleged the time, place, manner, and nature of the accident or injury; and to the allegation that for a long time after the death of the insured and until about April 12, 1937, the cause of his death was unknown to her but the fact of his death was known to both the plaintiff and the defendant, the defendant specially demurred on the ground that the same is indefinite and fails to allege the time the plaintiff discovered the cause of the death of the insured and fails to state the cause of his death, and that such allegations are necessary to put the defendant on notice of the accident or injury causing his death.

The plaintiff amended the petition by designating the allegations already made as count 1 and by adding that on or about May 25, 1936, the insured suffered an attack of appendicitis and thereafter, on such date, was operated on for such attack, the operation being a successful and clean one from which he fully recovered; that thereafter, either Monday night or Tuesday night before the insured died on Wednesday, having a wound in his side caused by said operation, an embolus from some accidental cause became attached to the wound and the embolus...