New York Life Ins. Co. v. Mason

• Decision Date: 28 April 1938
• Docket Number: 4 Div. 999.
• Parties: NEW YORK LIFE INS. CO. v. MASON.
• Court: Alabama Supreme Court

180 So. 775

236 Ala. 44

NEW YORK LIFE INS. CO. v. MASON.

4 Div. 999.

Supreme Court of Alabama

April 28, 1938

Appeal from Circuit Court, Bullock County; J. S. Williams, Judge.

Action to recover premiums paid on and disability benefits under a policy of life insurance by Marvin Mason against the New York Life Insurance Company. From a judgment for plaintiff defendant appeals.

Reversed and remanded.

A letter from chairman of insurer's committee on disability to insured's attorneys describing insurer's investigation of claim for disability benefits, and asserting that insured was not continuously totally disabled before specified date, did not waive provision whereby filing of proof of disability was a condition precedent to recovery of benefits.

Counts of the complainant 3 and 4 are as follows:

"3. The plaintiff claims of the defendant the sum of One Thousand Three Hundred Nineteen and 92/100 ($1,319.92) Dollars, damages for the breach of an agreement entered into by it on, to-wit: the 2nd day of January, 1926, in substance as follows: Defendant, for and in consideration of the sum of One Hundred Eleven and 09/100 ($111.09) Dollars per year agreed to and did insure plaintiff against death, disease, and accident, and did agree to pay plaintiff Twenty-eight and 19/100 ($28.19) Dollars per month as long as plaintiff should continue to be total and permanently disabled and live. Plaintiff avers that on to-wit: the 5th day of October, 1933, he contracted an illness under the terms of said contract, totally and permanently disabling him and causing him a total loss of time the rest of his natural life. And the plaintiff says that, although he has complied with all the provisions of said contract on his part, the defendant has failed to comply with the following provisions thereof, viz., the defendant has failed to pay the plaintiff said Twenty-eight and 19/100 ($28.19) Dollars per month. Plaintiff avers that at the time of the contraction of said illness, when he thereby became totally and permanently disabled on, to-wit: October 5th, 1933, said premiums on said policy was in full force and effect. Plaintiff avers that said policy is the property of himself. Plaintiff admits that defendant has paid the disability benefits provided by said policy for the period commencing September 5, 1936, to and including January 5, 1937.

"4. The Plaintiff claims of the defendant the sum of nine Hundred Eighty-Six and 65/100 ($986.65) Dollars, damages for the breach of an agreement entered into by it on, to-wit: the 2nd day of January, 1926, in substance as follows: Defendant, for and in consideration of the sum of One Hundred Eleven and 09/100 ($111.09) Dollars per year, agreed to and did insure plaintiff against death, disease and accident, and did agree to pay plaintiff Twenty-eight and 19/100 Dollars per month as long as plaintiff should continue to be total and permanently disabled and live. Plaintiff avers that on, to-wit: the 5th day of October, 1933, he contracted an illness under the terms of said contract, totally and permanently disabling him and causing him a total loss of time the rest of his natural life. And the plaintiff says that, although he has complied with all the provisions of said contract on his part, the defendant has failed to comply with the following provisions thereof, viz., the defendant has failed to pay the plaintiff said Twenty-eight and 19/100 ($28.19) Dollars per month. Plaintiff avers that at the time of the contraction of said illness, when he thereby became totally and permanently disabled on, to-wit: October 5th, 1933 said premiums on said policy had been paid to and accepted by the defendant and said policy was in full force and effect. Plaintiff avers that said policy is the property of himself. Plaintiff admits that the defendant has paid the disability benefits provided by said policy for the period commencing September 5, 1936, to and including January 5, 1937."

The following charges were refused to defendant:

"1. I charge you that if you believe all the evidence in this case you should not return a verdict for the plaintiff.

"4. If you believe all the evidence you should not return a verdict for the plaintiff under count three of the complaint.

"5. If you believe all the evidence you should not return a verdict for the plaintiff under count 4 of the complaint.

"A. The Court charges the jury that if they believe the testimony in this case they should not find for the plaintiff for any amounts for return of premium or monthly disability benefits prior to December 16, 1935."

Rushton, Crenshaw & Rushton, of Montgomery, for appellant.

Andrews & Andrews, of Union Springs, for appellee.

KNIGHT Justice.

Suit by Marvin Mason, appellee here, to recover certain premiums paid on a policy of life insurance, and also to recover certain disability benefits, which plaintiff contended were due him under the total and permanent disability feature of his policy contract with the appellant.

As originally filed, the complaint contained five counts, but the court, on written requests of the defendant, charged out counts 1 and 2. Count 5 was in form a common count for money had and received by the defendant to use of the plaintiff. Counts 3 and 4 appear in the report of the case. There was no demurrer to any of the counts.

The defendant pleaded in short by consent the general issue, with leave to give in evidence any matters of defense which would be appropriate under special pleas, including the plea of non est factum, verification of which being waived; and with like leave to the plaintiff to give in evidence any matters which would constitute a reply to such special pleas.

It will be noted that in counts 3 and 4 the following averment appears: "And the plaintiff says that, although he has complied with all the provisions of said contract on his part, the defendant has failed to comply with the following provisions thereof"; then follows the breach assigned.

The two counts are substantially in Code form for action on a dependent covenant or agreement. Code 1923, § 9531, form 9.

The plaintiff duly offered in evidence the contract of insurance, but the defendant objected to the introduction of this contract in evidence upon the following stated grounds: "That there was a material variance between the provisions of said policy offered in evidence and the policy averred in the complaint; that there was a material variance between the policy as offered in evidence and the policy as averred in the complaint in that (in) the policy offered in evidence there was a condition precedent to the defendant's liability, towit, the furnishing of due proof that the insured was totally disabled, whereas the complaint averred a policy of insurance under which the defendant agreed to pay whenever the plaintiff became totally and permanently disabled; and upon the further ground that said policy as offered in evidence contained a condition precedent which was not contained in the policy averred in the complaint."

The court overruled the defendant's objections to the introduction of the policy in evidence, and to this action of the court the defendant duly reserved an exception. This ruling of the court is made the basis of the appellant's first assignment of error.

It is insisted by the appellant that the policy provision in the contract sued on in this case is in exactly the same language as that contained in the case of New York Life Insurance Co. v. Sinquefield, 26 Ala. App. 523, 163 So. 809, certiorari denied 231 Ala. 185, 163 So. 812, in which it was held that the furnishing of due proof of disability was a condition precedent to any obligation on the part of the insurer to pay disability benefits.

This court is firmly committed to the proposition that, under policies like the one now before the court, the furnishing of due proof of disability constitutes a condition precedent to recovery of disability benefits, or to a waiver of the payment of premiums thereafter falling due on such policies. New England Mut. Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 59 A.L.R. 1075; McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349; Burchfield v. Ætna Life Ins. Co., 230 Ala. 49, 159 So. 235; Equitable Life Assur. Soc. v. Dorriety, 229 Ala. 352, 157 So. 59; Equitable Life Assur. Soc. v. Foster, 230 Ala. 209, 160 So. 117.

While the two counts--3 and 4--do not aver in terms that the plaintiff furnished the defendant due proof that he had become totally and permanently disabled, they do aver, following form 9 under section 9531 of the Code, that the plaintiff had "complied with all the provisions of said contract on his part." This we construe to mean that plaintiff, as required by the policy contract, had furnished defendant, at its company's home office, with due proof of his disability as defined in the policy, before default in the payment of premiums.

We are of the opinion, therefore, that there was no such variance between the contract sued on and the one introduced in evidence as would have justified the court in refusing to permit the plaintiff to read the contract in evidence. The appellant can take nothing by this assignment of error.

The objection made by the defendant to the introduction in evidence of the contract of insurance did not go to its execution.

The policy contract sued on contained the following provisions:

"Upon receipt at the Company's Home Office before default in payment of premium, of due proof that the insured is totally disabled as defined above and will be continuously so totally disabled for life, or if the proof submitted is not conclusive as to the permanency of such disability, but establishes that the Insured is, and for a period of not less...