Pacific Mut. Life Ins. Co. v. Cash

• Decision Date: 01 May 1928
• Citation: 6 S.W.2d 239,224 Ky. 292
• Parties: PACIFIC MUT. LIFE INS. CO. v. CASH.
• Court: Kentucky Court of Appeals

6 S.W.2d 239

224 Ky. 292

PACIFIC MUT. LIFE INS. CO. v. CASH.

Court of Appeals of Kentucky

May 1, 1928

Appeal from Circuit Court, McCracken County.

Action by Mrs. Georgia Cash against the Pacific Mutual Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Eaton &amp Boyd, of Paducah, for appellant.

C. C Grassham, of Paducah, for appellee.

WILLIS J.

This is an action on an accident insurance policy.

On January 23, 1926, the Pacific Mutual Life Insurance Company insured Robert H. Cash for a term of twelve months in the principal sum of $1,500 against the effects of bodily injuries sustained during the term of the policy, and caused directly, independently, and exclusively of all other causes by external, violent, and accidental means, expressly excluding suicide, or any attempt thereat, sane or insane. The insured was an employee of the Illinois Central Railroad Company, and, on February 23, 1926, he was admitted to the hospital maintained for that railroad company's employees for treatment for pneumonia from which he was then suffering. Three days later he became delirious, and had to be restrained in bed. During that night, about 1:30 o'clock he escaped from the restraining sheet which had been placed over him, brushed aside the resistance interposed by his nurse, and climbed out of a window, falling headlong to the concrete pavement 18 or 20 feet below. He died within a few hours thereafter.

This action was instituted by the beneficiary, Georgia Cash, widow of the insured, to recover the principal sum named in the policy. The insurance company defended the action on the grounds that no proof of loss was furnished to it, as required by the policy, and that the death did not result from the fall, but from the pre-existing disease. The jury returned a verdict in favor of the plaintiff, and the insurance company appeals.

The policy provides that:

"In the event of accidental death, immediate notice thereof must be given to the company."

It further provides:

"5. Such notice given by or in behalf of the insured or beneficiary, as the case may be, to the company at its home office, 501 West Sixth street, in the city of Los Angeles, California, or to any authorized agent of the company, with particulars sufficient to identify the insured, shall be deemed to be notice to the company. Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible.

6. The company upon receipt of such notice, will furnish to the claimant such forms as are usually furnished by it for filing proofs of loss If such forms are not so furnished within fifteen days after the receipt of such notice, the claimant shall be deemed to have complied with the requirements of this policy as to proof of loss upon submitting within the time fixed in the policy for filing proofs of loss, written proof covering the occurrence, character and extent of the loss for which claim is made.

7. Affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the company is liable, and in case of claim for any other loss, within ninety days after the date of such loss."

"14. No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within two years from the expiration of the time within which proof of loss is required by the policy.

15. If any time limitation of this policy with respect to giving notice of claim or furnishing proof of loss is less than that permitted by the law of the state in which the insured resides at the time this policy is issued, such limitation is hereby extended to agree with the minimum period permitted by such law."

We find no other provisions in the policy upon the subject of notice or proof of loss.

It appears that the insurance company had notice of the death of insured in March, which was only a few days after that event. It furnished blanks for preliminary particulars of sickness disability, but did not furnish forms for proof of death. An effort was made by it to settle the claim by paying sick benefits for the period insured was confined by illness. The correspondence introduced shows that the company had investigated the case and had a file on the subject, and nothing indicates any lack of information as to the facts. It is the rule in this state that slight acts on the part of the insurance company indicating a denial of liability will operate as a waiver of formal proof of loss. 1 C.J. § 196, p. 478; Fidelity & Casualty Co. v. Cooper, 137 Ky. 548, 126 S.W. 111; Ætna Life Ins. Co. v. Bethel, 140 Ky. 609, 131 S.W. 523.

The facts appearing, with those we have mentioned, brought this case within the reason and spirit, as well as the strict letter, of the prevailing rule, and the court did not err in declining to abate the action. Kenton Ins. Co. v. Downs, 90 Ky. 236, 13 S.W. 882, 12 Ky. Law Rep. 115; American Accident Co. v. Fidler, 35 S.W. 905, 36 S.W. 528, 18 Ky. Law Rep. 161.

The most serious insistence of the appellant is that it was entitled to a peremptory instruction on the ground that the plaintiff failed to offer any evidence that the death of insured resulted from the fall, independently of the disease with which he was afflicted. It is very earnestly and ably argued that the death of Cash was due to pneumonia, or, in any event, to both the accident and disease, and was not such a death as was insured against by the written contract. The appellant's position is thus aptly put by its counsel:

"An insurance company is not liable where the death happened in consequence of an accident and a disease, unless the disease itself resulted from or was caused by the accident. In this case the accident and death both resulted from the previously existing disease." Standard Accident Ins. Co. v. Strunk, 220 Ky. 256,

...