New York Life Ins. Co. v. Salmon, 31367
| Decision Date | 22 October 1934 |
| Docket Number | 31367 |
| Citation | 157 So. 344,171 Miss. 255 |
| Parties | NEW YORK LIFE INS. CO. v. SALMON et al |
| Court | Mississippi Supreme Court |
1 INSURANCE.
Insurer which receives proof of loss from insured and denies liability on ground other than that proof is defective waives defects in proof.
2 INSURANCE.
Insured held not estopped to claim disability benefits under life policy by proof of loss which allegedly failed to show total and permanent disability, where insurer neither relied nor acted on proof, but made independent investigation and denied liability on another ground.
HON WM. A. ALCORN, Judge.
APPEAL from the circuit court of Tunica county HON. WM. A. ALCORN, Judge.
Action by Thomas E. Salmon and another against the New York Life Insurance Company. Judgment for plaintiffs, and defendant appeals. Affirmed.
Affirmed.
King & King, of Memphis, Tennessee, and Louis H. Cooke, of New York City, for appellant.
In the absence of proof to show that the certificate of proof of total and permanent disability was incorrect or was the result of a mistake, misapprehension or some error upon which estoppel could not be claimed, the defendant, insurer, was entitled to have its motion for a directed verdict sustained. The evidential value of the notice and the proofs of disability in insurance cases are either prima facie or conclusive.
2 Wigmore, sec. 1073, p. 570; Felix v. Ins. Co., 216 P. 95; 7 Cooley on Ins., p. 5866; Richelieu v. Ins. Co., 136 U.S. 408; Insurance Co. v. Lewis, 28. Fla. 209, 10 So. 297; Jones v. Ins. Co., 36. N. J. L. 29, 13 Am. Rep. 405; 14 R. C. L., pp. 1445, 1446; 5 Joyce on Insurance, sec. 3319; Ins. Co. v. Melick, 65 F. 178; 27 L. R. A. 629; 44 L. R. A. 846; 2 Arnold on Insurance, p. 1353; Mutual Ins. Co. v. Newton, 89 U.S. 22; Metropolitan Ins. Co. v. De Valt, 109 Va. 392, 17 Ann. Cases 34; General Accident Ins. Co. v. Humes, 185 P. 1085, 8 A. L. R. 318; Voekel v. Maccabees, 116. Wis. 206; Quatham v. Woodmen of America, 148 Mo.App. 33, 127 S.W. 651; Hicks v. Metropolitan Ins. Co., 190 S.W. 661; Mutual Life Assurance Society v. Harrington, 139 Miss. 847; Jensen v. Continental Life Ins. Co., 28 F.2d 545.
Numerous authorities could be cited as to the admissibility of statements in proof of disability or loss and they are all to the effect that the same are admissible and binding upon the insured until he shows that they were the result of error, mistake, misapprehension or fraud.
Metropolitan Ins. Co. v. Cleveland, 226 Ky. 221, 11 S.W.2d 434; Laury v. N.W. Insurance Co., 180 Minn. 205, 230 N.W. 648; National Fire Insurance Co. v. Provine, 138 Miss. 659; Mayhew v. Travellers Protective Assn., 52 S.W.2d 29; Giroux v. N. Y. Life Ins. Co., 85 N.H. 355; 159. A. 142; American Ins. Co. v. Anderson, 42 Ga. C. 624, 157 S.E. 112; Watkins v. Security Assn., 81 Colo. 66, 255 P. 452; 8 Couch, Cyc. of Insurance, secs. 2225 to 2227, inc.
It is respectfully insisted that the defendant had the right to rely upon the statements made by the plaintiff and furnished it pursuant to the terms of the policy until it is advised that the said proofs are not correct. The defendant was only called upon to defend the action set out in the pleadings. This court cannot say nor can any court say that if proper proofs are furnished showing a total and permanent disability, and investigation is made as the appellant has the right to make, that the action of the appellant will not be a payment of the claim for total and permanent disability if it finds the same to exist.
33 C. J., p. 18, sec. 666; Campbell v. Charter Oak F. & M. Ins. Co., 10 Allen, 213; Case v. Mfg. F. & M. Ins. Co., 82 Cal. 263, 21 P. 843; Hanover F. Ins. Co. v. Lewis, 28 Fla. 209, 10 So. 297; Travelers' Ins. Co. v. Nitterhouse, 11 Ind. A. 155, 38 N.E. 1110; U. S. Casualty Co. v. Peryman, 203 Ala. 212, 82 So. 462; Laurenzi v. Atlas Ins. Co., 131 Tenn. 644, 176 S.W. 1022.
C. A. Jaquess, of Tunica, for appellee.
Receiving and retaining notice or proofs of loss, without objecting to any defects therein, is a waiver of the objection.
Swann v. London, Liverpool & Globe Ins. Co., 52 Miss. 704.
It has been pointed out that waiver of defects by an acceptance, as sufficient, of proofs offered, is based upon an estoppel of the company to dispute their sufficiency, and that, therefore, evidence of such a waiver should be admitted under the allegation of performance.
American Life Ins. Co. v. Mahone, 56 Miss. 180.
Under the principle that those defects upon which the company intends to rely must be pointed out, an objection to certain defects in the proofs will amount to a waiver of all of those not mentioned. And the same rule applies as to proof of death or disability.
7 Cooley's Briefs on Insurance (2d), pp. 6048-9; Aetna Life Ins. Co. v. Bethel, 131 S.W. 523, 140 Ky. 609; Sun Mutual Ins. Co. v. Mattingly, 77 Tex. 162, 13 S.W. 1016; Harriman v. Queen Ins. Co., 49 Wis. 71, 5 N.W. 12.
If an insurance company, after receiving an insufficient notice examines the claim and refuses to pay it exclusively on other reasons, this is a waiver of objections to the notice.
Rosenberg v. Maryland Casualty Co., 3 N. J. Misc. 1132, 130 A. 726; Shapiro v. Employers Liability Assn., 139 Misc. 454, 248 N.Y.S. 587; American Life Ins. Co. v. Mahone, 56 Miss. 180; National Life Ins. Co. v. Hedges, 233 Ky. 840, 27 S.W.2d 422.
A company cannot arbitrarily object to the sufficiency of proofs. If, however, they disclose a cause of death which excepts the company from liability, it does not derogate from their sufficiency as proofs of death. And while such a disclosure might suggest to the company the propriety of refusing payment, it could be no bar to the bringing of a suit.
Charter Oak Life Ins. Co. v. Rodel, 95 U.S. 232, 24 L.Ed. 433; Mutual Benefit Health & Accident Association v. Mathis, 142 So. 494.
It is settled doctrine in this state, that in order for one to be totally disabled within the meaning of a health or accident insurance policy, it is not necessary that he be wholly incapacitated to perform any duty incident to his usual employment or business, but, if the insured is prevented by his injury or illness from doing the substantial acts required of him in his business, or if his physical condition is such that, in order to effect a cure or prolongation of life, common care and prudence require that he cease all work, he is totally disabled within the meaning of such policies.
Metropolitan Cas. Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; Equitable Life Ins. Co. v. Serio, 155 Miss. 515, 124 So. 485, 486; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750.
Argued orally by Earl King, for appellant.
Appellees brought this action in the circuit court of Tunica county against appellant on a policy of insurance on the life of appellee Salmon for disability benefits under the policy, which policy had been issued theretofore and delivered by appellant to said Salmon. The bank's interest in the policy was by assignment from Salmon. The suit was brought to recover one hundred dollars a month because of the total and permanent disability of the insured.
The declaration alleged that on or about the 28th day of August, 1932, the insured made and filed with the home office of appellant full and complete proof of such total and permanent disability, which proof was in writing and contained all the facts with reference to such total and permanent disability. Appellant interposed three pleas--the general issue and two special pleas. The second special plea only is pertinent to the question involved. It is averred in that that neither of the appellees Salmon or the bank had at any time filed with the home office of appellant full and complete proof of disability in writing containing all the facts of such total and permanent disability.
The insurance policy contains these provisions:
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