Mutual Ben. Health & Accident Ass'n v. Blaylock
| Decision Date | 26 September 1932 |
| Docket Number | 30109 |
| Parties | MUTUAL BEN. HEALTH & ACCIDENT ASS'N v. BLAYLOCK |
| Court | Mississippi Supreme Court |
(Division B.)
1 INSURANCE.
Permitting copy of policy attached to declaration to be amended to conform to policy actually issued held not error.
2 COSTS.
Imposition of costs is discretionary with trial courts.
3 INSURANCE.
Insurance contracts are construed most strongly against party drafting contract, and most favorably to policyholder.
4. INSURANCE. That skin disease appeared on sexual organ of insured held not to exempt insurer from liability under clause providing that disease of organs not common to both sexes was not covered by policy where disease could be contracted by either sex on any part of body.
Clause which provided that policy does not cover disease of organs which are not common to both sexes contemplated that the exception should be to a disease of an organ not common to both sexes, and did not contemplate a skin disease which could be contracted by any one on any part of body.
APPEAL from circuit court of Bolivar county.
HON. WM. A. ALCORN, Judge.
Suit by J. Walter Blaylock against the Mutual Benefit Health & Accident Association. From the judgment, defendant appeals. Affirmed.
Affirmed.
C. E. Valentine, of Cleveland, for appellant.
Defendant was sued upon a "Business Men's Special Non Prorating Policy" with its various provisions and amounts, and suddenly compelled to defend on another policy altogether with different provisions and amounts, and the amendment of the application aforesaid precluded defendant from having the benefit of the testimony of attending physicians and was compelled to rest its case without such evidence which would have been entirely competent as the exhibits stood at the beginning of the trial. Certainly it is true that amendments are liberally allowed, but this is more than an amendment.
Every court may protect a party from being taxed with fees and costs of an excessive number of witnesses summoned at the expense of his adversary.
Section 567, Code of 1930, providing for allowance of amendments where reasonable, also provides that such amendments be made on such terms, as to costs and delay, as may be proper, and that either party may except thereto, and assign same as error.
When, by an interlocutory judgment, any other part of the pleading shall be adjudged insufficient, all costs occasioned by such bad pleading shall be adjudged against him who committed the fault.
Since, this ulcer, benign tumor on penis, benign growth on penis, boil on the penis, or epithelioma of the penis is certainly a disease of an organ not common to both sexes, it is likewise certain that a disability resulting therefrom is one not insured against by the policy sued on, and the appellee could not recover for such disability. It is not enough that plaintiff merely suffer loss.
It is essential for plaintiff, in his pleading, to bring the case within the terms of the policy by alleging a loss from the happening of the event or peril insured against.
33 Corpus Juris, 87, sec. 801.
Provisions in accident insurance policies, excepting certain classes and kinds of injuries and causes of death, are recognized as valid and binding contracts by the courts of Missouri and elsewhere.
Scales v. National Life & Accident Ins. Co., 186 S.W. 948; Order of United Commercial Travelers of America v. Dobbs, 204 S.W. 468; Riley v. American National Insurance Company, 123 S.E. 33.
The furnishing of proof of loss as required by the policy is a condition precedent to an action for the loss.
W. W. Millsaps and Jno. T. Smith, both of Cleveland, for appellee.
It was proper to allow the amendments.
There were no material changes made in the exhibit.
The statute plainly provides that "the court shall require all such amendments to be made on such terms, as to costs and delay, as may be proper to prevent surprise or undue advantage.
It is the contention of the appellee that the ruling of court in connection with the motion to tax the insured with the costs which had accured to the time was correct. Certainly the appellant could not maintain the position that the amendment caused it to be taken by surprise, or that any undue advantage had been taken of it.
The policy of insurance now under consideration exempts the insurer from liability for "diseases of organs which are not common to both sexes." The disease from which the insured suffered was a very rare skin disease and attacked the insured on the belly wall and penis. Certainly the skin is common to both sexes. The disease from which the insured suffered was not a disease of the penis, but a disease of the skin.
Policies of insurance are to be construed liberally in favor of the insured and strictly against the insurer.
Liverpool and London and Globe Insurance Company v. Van Os and Shuster, 63 Miss. 431; Shivers v. Farmers Mutual Fire Insurance Company, 55 So. 965; United States Fidelity and Guaranty Company v. Hood, 87 So. 115.
Jno. T. Smith, of Cleveland, for appellee.
Where the proof has made a loss apparently within the policy the burden is on the insurer to prove that the loss arose from a cause for which it is not liable.
R. C. L. vol. 14, page 1437, sec. 599.
It is also well settled that this clause should be construed strictly against the insurer.
The appellee, Blaylock, brought suit against the appellant in the circuit court of Bolivar county for a disability benefit alleged to have accrued to him under the terms of a policy issued to him on the 13th day of September, 1928.
It was alleged that on January 1, 1929, and before the 1st day of April, 1929, premiums due on said policy had been paid, and that, during all times thereafter set forth, the policy was in full force; that he became ill in March, 1929, and on March 21, 1929, he entered the Kings' Daughters Hospital at Greenville, Mississippi, where he remained totally disabled and under the care of physicians until April 2, 1929; that between said dates he was suffering from chronic ulcer, and that during all of said time he was totally disabled, and that he paid certain hospital bills; that the policy contracted to pay him benefits amounting...
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