New York Life Ins. Co. v. Gill

• Decision Date: 20 June 1938
• Docket Number: 32920
• Citation: 182 So. 109,182 Miss. 815
• Court: Mississippi Supreme Court
• Parties: NEW YORK LIFE INS. CO. v. GILL

182 So. 109

182 Miss. 815

NEW YORK LIFE INS. CO. v. GILL

No. 32920

Supreme Court of Mississippi

June 20, 1938

Division A

Suggestion Of Error Overruled July 11, 1938.

APPEAL from the circuit court of Lauderdale county, HON. A. G BUSBY, Judge.

Action for double indemnity benefits of life policy by Mrs. Flora L Gill against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment entered for defendant.

Reversed and judgment here for appellant.

Wilbourn, Miller & Wilbourn, of Meridian, for appellant.

A directed verdict should have been granted in the court below. The cause here should be reversed and judgment rendered for appellant. We submit that the cause of action did accrue as of the date of the death of Mr. Gill, September 3, 1925, for the reason that it is expressly stipulated in the policy that the insurance is payable at death.

Under any possible view of the case as shown by the record, the cause of action accrued, and the statute of limitations against recovery under the policy, began to run, either as of the date of the death of the insured, or as of the date of the actual presentation of the proofs of death that were filed, which was a date prior to the 21st of October, 1925, or within a reasonable time after the date of the death of the insured. Under the facts here before the court, whichever of the foregoing dates is held to be the date of the accrual of the liability, the cause of action is barred by the six-year statute of limitations.

Schanzenback v. American Life Ins. Co., 237 N.W. 737.

Where the policy requires notice and proof of death, but fixes no specific time therefor, the notice and proof may and must be given within a reasonable time after the death of the insured.

37 C. J. 557, sec. 311; 33 C. J. 13, sec. 658.

In Mississippi there is no statute regulating the time for furnishing proofs of death, and the particular policy sued upon contains no provision upon the subject. Therefore, proofs were required to have been furnished within a reasonable time.

London Guaranty & Accident Co. v. Sivy, 66 N.E. 481; Aetna Life Ins. Co. v. Fitzgerald, 112 A. S. R. 232; 7 Cooley's Briefs on Insurance (2 Ed.), page 5915; New York Life Ins. Co. v. Brame, 112 Miss. 828, 73 So. 806.

If the proofs of death were sufficient, as claimed by appellee, and she was notified by the company that what it tendered her was all that it claimed to owe her under such proofs of death, and if she in law were not required to give any other proofs of death to maintain her suit, it seems clear that her right to sue for double indemnity had fully accrued, if at all, at the time appellant tendered its check to the appellee. She had a right on this theory to have sued at that time, and the cause of action is barred by the six-year statute of limitations. On the other hand, if as appears, the proofs of death did not show that death was due from accidental injury within the meaning of the policy, entitling the appellee to double indemnity, and proof was needful to establish such right, then it was due to be filed within a reasonable time after the event of death.

The delay about bringing suit for double indemnity for nearly eleven years, as in this case, cannot be excused by the fact that the appellant tendered her, as in full of the policy, the check which appellee received and cashed on October 21, 1925. That was a definite refusal to pay more. It was not fraudulent. It was not accompanied by any acts of fraud on the part of appellant.

If it be considered that the appellee established by z the character of evidence that she was required to establish such contention, that Mr. Mark, at the time he offered her the check, stated to her that her husband had died of heart disease; and, if, for the moment his denial of that statement be laid aside, under the facts and circumstances in this record, it is clear that such statement, if made by Mr. Mark to the appellee, under the circumstances and in the language that she gave in her testimony, is not binding upon the company, nor is it sufficient to make out either a case of fraudulent concealment or of misrepresentations, excusing appellee from her delay of nearly eleven years, to assert, by claim or suit, any right to double indemnity under the policy. Such a statement by Mark, if he made it, is not binding upon the company, for the reason that he was not a general agent of the appellant either in fact or because of Section 5196 of the Code of 1930 of Mississippi.

Aetna Ins. Co. v. Stingly, 104 So. 13, 174 Miss. 556; McCain v. Cochran, 120 So. 823, 153 Miss. 237; Pilot Life Ins. Co. v. Wade, 153 Miss. 874, 121 So. 844; Selma, Marion & Memphis R. R. Co. v. Anderson, 51 Miss. 829; Anderson v. Hill, 12 S. & M. 679, 51 Am. Dec. 130; Hall v. Thompson, 1 S. & M. 443; Adcock v. Upton, 110 So. 772; Deshaltreaux v. Batson, 159 Miss. 236, 131 So. 346; Mutual Life Ins. Co. of N.Y. v. Hebron, 166 Miss. 145, 146 So. 445.

Appellee's evidence in this case did not show fraudulent concealment of a cause of action from her knowledge within the meaning of Section 2312 of the Code of 1930 of Mississippi and the six-year statute of limitations applies.

Young v. Cook, 30 Miss. 320; Federal Land Bank v. Collins, 127 So. 570. 156 Miss. 893; Dunn v. Dent, 153 So. 798, 169 Miss. 574; First National Bank of Laurel v. Johnson, 171 So. 11, 177 Miss. 634.

It is distinctly held that acts of fraud relied on to bring a case within the purview of Section 2312, Code of 1930, must be acts of fraud "committed by defendants or someone in privity with them."

Jones v. Rodgers, 85 Miss. 802, 38 So. 742; Burton v. John Hancock Mutual Life Ins. Co., 157 So. 525, 171 Miss. 596.

The evidence fails to establish that the insured met his death as the result of an accidental injury within the meaning of the policy.

Pervangher v. Union Casualty Ins. Co., 85 Miss. 31, 37 So. 461.

The proofs of death submitted did not show that it resulted from accidental means. Under the authorities there can be no recovery where the injury alleged, although totally unexpected fortuitous and undesigned, is occasioned by voluntary act on the part of the insured, executed in an expected and ordinary way. Such an injury, though accidental, is not effected through accidental means. Especially is this true where, as here, the proof shows that such lifting as was done by the insured was not only voluntarily undertaken, but engaged in by him at a time when he was already ill, and when he had been suffering that same day, and prior thereto, with severe headache.

Fidelity Casualty Co. of New York v. Stacey's Executors, 143 F. 271, 5 L.R.A. (N.S.) 657, 6 Ann. Cas. 955; Hutton v. States Acc. Ins. Co., 267 Ill. 267, 108 N.E. 296, L.R.A. 1915E 127, Ann. Cas. 1916C 577; U. S. Casualty Co. v. Malone, 126 Miss. 73, 87 So. 896; Barham v. State Life Ins. Co., 135 So. 730; Prudential Casualty Co. v. Curry, 65 So. 852; Landress v. Phoenix Mutual Life Ins. Co., 54 S.Ct. 461, 78 L.Ed. 619, 90 A.L.R. 1382; Rock v. Travelers Ins. Co., 172 Cal. 462, 156 P. 1029, L.R.A. 1916E, 1197.

Appellee had the burden to establish death through accidental means.

Conn. Gen. Life Ins. Co. v. Maher, 70 F.2d 441; U. S. F. & G. Co. v. Blum, 270 F. 946; U. S. Casualty Co. of N.Y. v. Malone, 126 Miss, 73, 87 So. 896; Mass. Protective Assn. v. Cranford, 137 Miss. 901; N. Y. Life Ins. Co. v. Brown, 39 F.2d 376; Travelers Ins. Co. v. McConkey, 127 U.S. 661, 8 S.Ct. 1360, 32 L.Ed. 308.

There is a distinction between an accidental death and death by accidental means.

Ogilvie v. Aetna, 26 A.L.R. 116, 209 P. 261; Lavender v. Ins. Co., 171 Miss. 169, 157 So. 101; Husbands v. Indiana Travelers Ins. Co., 133 N.E. 130, 35 A.L.R. 1184; Landress v. Phoenix Mutual, 291 U.S. 491, 78 L.Ed. 934; Pope v. Prudential, 29 F.2d 185.

In this case, the debt, if any, was actually cancelled where the policy was surrendered upon payment of the check of the appellant, the appellee retaining and using the check.

Woodbury v. New York Life, 223 Am. Dec. 272; Larkin v. Hardenbrook, 90 N.Y. 332; Simons v. American Legion, 178 N.Y. 263.

While it seems clear to us that the appellant was entitled to a directed verdict and that the case should be reversed and rendered here, it is practically inconceivable that a verdict against the appellant on this record could be allowed to stand.

M. & O. R. R. Co. v. Bennett, 90 So. 113, 127 Miss. 413; M. & O. R. R. Co. v. Johnson, 128 So. 827, 157 Miss. 266; M. & O. R. R. Co. v. Johnson, 141 So. 581, 165 Miss. 581; Teche Lines v. Mason, 144 So. 383.

Robert M. Holmes and Thos. L. Bailey, both of Meridian, for appellee.

The evidence before appellant at the time of the issuance of the check was, in effect, that insured had died of a ruptured blood vessel caused by lifting a heavy shafting; that he had not been ill previous thereto, and that there was no contributing cause, and that he had died within or in about one hour.

It will be observed that the policy of insurance does not impose on the claimant the duty of furnishing proofs; and we understand the law to be in absence of such provision in the policy, or notice of a custom to so require served on the beneficiary or claimant (which was not done in the case at bar), the claimant is not required to give the company any notice or proof of loss.

1 C. J. 474, par. 158; American Nat. Ins. Co. v. Waters, 96 So. 739, 133 Miss. 28; 33 C. J. 11, 12, par. 657; 37 C. J. 557, pars. 311-312; Miss. Power Co. v. Bennett, 173 Miss. 109, 161 So. 301.

We respectfully conclude from a consideration of the undisputed facts in this case as the same are revealed by this record that appellant obtained the proofs in this case and that all that appellee had to do with...