Neill v. Fid. Mut. Life Ins. Co.

• Decision Date: 08 March 1938
• Docket Number: (No. 8649)
• Citation: 119 W.Va. 694
• Court: West Virginia Supreme Court
• Parties: Clyde H. Neill v. Fidelity Mutual Life InsuranceCompany

119 W.Va. 694

Clyde H. Neill

v. Fidelity Mutual Life InsuranceCompany

(No. 8649)

Supreme Court of Appeals of West Virginia.

Submitted February 15, 1938.

Decided March 8, 1938.

1. Insurance

Total and presumably permanent disability under an accident clause of a life insurance policy does not mean a state of helplessness. It means the inability of the insured to engage in any useful occupation, whether in his usual or another vocation.

2. Insurance

An insured, who, as a result of an accident, is rendered physically or mentally unable to file, within the stipulated time, the proof of disability required under an accident clause of a life insurance policy, on which the premiums were not in arrears, is excused therefrom, provided such proof of disability is filed within a reasonable time after insured recovers his ability to prepare or direct its preparation.

3. Insurance

The cases of Iannarelli v. Ins. Co., 114 W. Va. 88, 171 s. E. 748, and DaCorte v. Ins. Co., 114 W. Va. 172, 171 s. E. 248, distinguished from instant case.

4. Evidence

Ordinarily, it is error to permit an expert to give opinion evidence based upon X-ray photographs which are not introduced in evidence; but where a party who is an expert in reading X-ray photographs bases his testimony in part on X-ray photographs not introduced, and in part as to sympathetic symptoms which he experiences, the error, to be reversible, must also be prejudicial. Each case stands on its own merits.

Kenna, Judge, absent.

Error to Circuit Court, Marion County.

Action in assumpsit on double indemnity provision of accident clause of life policy by Clyde H. Neill against the Fidelity Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Hatcher, Judge, dissenting.

Trevey Nutter and H. H. Rose, for plaintiff in error.

Frank C. Haymond, for defendant in error.

Riley, Judge:

Clyde H. Neill instituted this action in assumpsit against the defendant, Fidelity Mutual Life Insurance Company, in the circuit court of Marion County. The recovery sought by the first count of the amended declaration, on which the case was tried, was limited to double indemnity under an accident clause of a life insurance policy. The defendant filed its plea of general issue to which the plaintiff replied generally and issue was joined thereon. From a judgment in favor of the plaintiff, based on a verdict of the jury, defendant prosecutes this writ of error.

Two specifications of defense were filed by defendant, only one of which, that is, "Specifications of Defense Number 1", was retained. Said "Specifications of Defense Number 1" was directed to the claim of the plaintiff set forth in the first count of the amended declaration. It denied liability on the ground that the plaintiff, although rendered wholly and presumably permanently disabled on January 15, 1932, as a result of an accident, had neglected and failed to file a proof of such accidental disability at the head office of the defendant company until April 22, 1932, more than sixty days after the date the claimed disability occurred. The plaintiff replied: (1) that the general agent of the defendant, located at Fairmont, having had actual notice of plaintiff's disability, had, by his representations to the representative of the plaintiff, waived proof of claim; (2) that for more than sixty days from the date of the accident the plaintiff was physically and mentally disabled from preparing or causing to be prepared the proof of claim required by the policy; and (3) that by the payment of liability under the policy for disability the defendant waived the requirement of notice for claim for double indemnity as a result of an accident.

The evidence, adduced at the trial (March term, 1937), discloses that plaintiff received serious personal injuries in an automobile accident on January 15, 1932. He was rendered unconscious and confined to a hospital for about ten days. Thereafter he was confined to his home in Fairmont for more than four months. It is clear that for more than sixty days following the accident he was not physically or mentally able to transact business. His injuries consisted of an injured right leg, crushed knee cap, severe back injury, broken right wrist, broken ribs, and cuts and bruises about his face, body and chest. He developed pneumonia, pleurisy and phlebitis. At times he was delirious and irrational, and at other times suffered pain necessitating the use of opiates. A few weeks after the accident, he had chronic and ulcerated phlebitis. As a result of his injuries he had to undergo several surgical operations. He walks with a cane and limps. Three physicians and the plaintiff testified that in their opinion, he was permanently and totally disabled from engaging in any gainful occupation. To resume the evidence as to plaintiff's disability, it is sufficient for us to say, as a matter of law, that plaintiff was disabled from filing the proof of his claim within the sixty days provided by the policy, and the jury to find, as a matter of fact, that he was permanently and presumably totally disabled within the accident provision of the policy. "Absolute helplessness is not deemed by the courts to be a condition precedent to the right of an insured to recover under a total and permanent disability clause." Hayes V. Prudential Ins. Co., 114 W. Va. 323, 326, 171 S. E. 824, 825. Ordinarily, the question is one for the jury. Jones V. Connecticut General Life Ins. Co., Syl. 3, 114 W. Va. 651, 173 S. E. 259.

Plaintiff's counsel says that because of his physical and mental condition for a period of more than sixty days after the date of the accident, plaintiff was not required to file a proof of claim during the course of his disability. In opposition to this view, reliance is had upon the cases of Iannarelli v. Ins. Co., 114 W. Va. 88, 171 S. E. 748; DaCorte v. Ins. Co., 114 W. Va. 172, 171 S. E. 248; Bergholm V. Peoria Life Ins. Co., 284 U. S. 489, 76 L. Ed. 416, 52 Sup. Ct. 230, and a number of others. The Iannarelli, DaCorte and Bergholm cases represent the general rule in the United States. In those cases the disability of the assured to file a proof of claim within the period provided for in the policy was relied on to effect a waiver of premiums, the non-payment of which caused the policies to lapse. The incapacity of an insured to file a proof of claim, due to the injury provided against in a policy, will not prevent a forfeiture or termination of the policy because of non-payment of premiums. For a general collation of authoriites, see 15 A. L. R. 318; 59 A. L. R. 1080. The instant case, however, does not come within this general rule. Here, the policy had not lapsed and no reliance was had upon the disability of the plaintiff to file proof of claim in order to bring about a waiver in the lapse of the policy. Whereas, in the lannarelli and DaCorte cases, the policies had lapsed because of non-payment of premiums, and there was, in law and in fact, no contract of insurance. What was originally a contract of insurance became a nudum pactum. Under the clear weight of authority in this country, where a policy is in full force and effect and the assured relies upon his physical and mental disability as a waiver of a proof of claim, the courts sustain such waiver. Pfeiffer V. Missouri State L. Ins. Co., 174 Ark. 783, 297 S. W. 847, 54 A. L. R. 600; Rhyne V. Jefferson Standard Life Ins. Co., 196 N. C.717, 147 S. E. 6; Levan V. Metropolitan Life Ins. Co., 138 S. C. 253, 136 S. E. 304. See generally, 14 R. C. L., Insurance, sec. 504, p. 1333, and permanent supplement; 33 C. J., Insurance, sec. 663, p. 15; and extensive note in 54 A. L. R. 611. Contra: Whiteside V. North American Accident Ins. Co., 200 N. Y. 320, 93 N. E. 948, 35 L. R. A. (N. S.) 696.

The lannarelli and DaCorte cases may be distinguished in still another way, as suggested by Judge Maxwell in the lannarelli case. The instant case involves an accident insurance contract. Clearly, in the total disability clause of a life insurance policy, the filing of a proof of claim is a condition precedent. Equally is it clear that an accident policy contemplates a disability which has already occurred and which, in many cases, would prevent the assured from filing a proof of claim within any limited time. See Rhyne v. Jefferson Standard Life Ins. Co., supra; Levan v. Metropolitan Life Ins. Co., supra; and New England Mut. Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 153, 59 A. L. R. 1075, cited in the Iannarelli case. The question arising from the distinction between the two classes of cases is of first impression in this state. Here, the policy provides against a contingency which, in all probability, would render the insured, as it actually did in the instant case, unable to file a proof of claim until at least sometime after his injuries. Under the circumstances, we think the requirement of the filing of the proof of claim within sixty days, unlike the provisions in the Iannarelli and DaCorte cases, is a condition subsequent. Therefore, the failure to file the proof of claim within the stipulated time, the premiums on the policy not being in arrears, does not vitiate the accident clause of the policy, and the insured's rights were saved by the filing of a proof within a reasonable time after regaining his...