Protective Life Ins. Co. v. Hale

• Decision Date: 28 March 1935
• Docket Number: 6 Div. 609
• Citation: 161 So. 248,230 Ala. 323
• Parties: PROTECTIVE LIFE INS. CO. v. HALE.
• Court: Alabama Supreme Court

161 So. 248

230 Ala. 323

PROTECTIVE LIFE INS. CO. v. HALE.

6 Div. 609

Supreme Court of Alabama

March 28, 1935

Rehearing Denied May 2, 1935

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action on a group policy of insurance by Tom A. Hale against the Protective Life Insurance Company. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

THOMAS J., dissenting, and KNIGHT, J., DISSENTING in part.

Cabaniss & Johnston and L.D. Gardner, Jr., all of Birmingham, for appellant.

Taylor & Higgins, of Birmingham, for appellee.

BROWN Justice.

By the group policy, issued to the Pioneer Insurance Club of the Republic Iron & Steel Company's employees, December 1 1929, and the certificate of insurance issued to plaintiff the defendant engaged to pay to the beneficiary designated by the plaintiff, and named in the policy, $2,000 in the event of plaintiff's death while the policy was in force, and also, "If any member insured under this policy shall furnish this company with due proof that before having attained the age of 60 years, he or she has become totally and permanently disabled by bodily injury or disease, and that he or she is then, and will be at all times thereafter, wholly prevented thereby from engaging in any gainful occupation, the company will pay to such member in full settlement of all obligations herein as to such member's life, the amount of insurance in force hereunder on such member at the time of the approval by the company of the proofs as aforesaid." (Italics supplied.)

The events which mature the policy, according to its provisions, are the death of the insured or his total permanent disability within the meaning of its total disability clause. McCutcheon, as Guardian, etc., v. All States Life Ins. Co. (Ala.Sup.) 158 So. 729. The total disability clause in the policy sued on is in the exact language of the total disability clause involved in McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349, and reaffirmed in the McCutcheon Case, supra.

Count A of the complaint, on which the case was tried, after setting out in haec verba said total disability clause, avers: "That on, to-wit, the 5th day of June, 1932, while plaintiff was a member of said Pioneer Insurance Club, and while plaintiff was one of the members of said Club, insured under said policy of insurance, and while plaintiff was, to-wit, 42 years of age, and while said policy of insurance was in force and effect as to the plaintiff by reason of the payment of the premiums due thereon for plaintiff's insurance, plaintiff became totally and permanently disabled by reason of bodily injury, to-wit, injuries to his right leg, back and other parts of his body, to such an extent that plaintiff was, and at all times since said date has been and will at all times in the future be, wholly prevented thereby from engaging in any gainful occupation. And plaintiff avers that on, to-wit, the 15th day of March, 1933, while another group policy of insurance, issued by the defendant to the members of said Pioneer Insurance Club in lieu of said policy of insurance, was in force and effect as to plaintiff by reason of the payment of the premiums due thereon for plaintiff's insurance, and while plaintiff was so totally and permanently disabled as aforesaid, the plaintiff did furnish to the defendant due proof of such disability, and that defendant, after receiving said proof and after plaintiff's demand therefor, failed or refused to pay to the plaintiff the amount of insurance in force under said group policy insurance on the life of the plaintiff at the time of the receipt by the defendant of said proof, to-wit, Two Thousand Dollars ($2,000.00)." (Italics supplied.)

The defendant demurred to this count on the ground that it does not aver that the policy, the basis of this suit, was in force and effect at the time plaintiff furnished proof of his disability, and the demurrer was overruled.

In McGifford v. Protective Life Ins. Co., 227 Ala. 588, 151 So. 349, involving the quoted provision in a policy issued by the defendant on the same date and to the same club the policy in suit was issued to, it was ruled that the furnishing of proof of disability by the insured to the company while the policy was effective and the insurance in force was a condition precedent to liability. The holding in that case was reaffirmed in McCutcheon, Guardian, etc., v. All States Life Insurance Company, supra.

The provisions of a policy of different import were considered in Ex parte Gilbreath Gray (Prudential Ins. Co. v. Gray), 159 So. 265 (Ala.Sup.), from which McGifford's Case was differentiated. See, also, Bergholm et al. v. Peoria Life Ins. Co., 284 U.S. 489, 52 S.Ct. 230, 76 L.Ed. 416.

The furnishing of proof of total and permanent disability while the policy sued on was effective and the insurance was in force as to plaintiff, being a condition precedent to liability, the plaintiff had the burden of averring and proving performance of the condition. Equitable Life Assur. Soc. v. Dorriety (Ala.Sup.) 157 So. 59; 13 C.J. 635, § 705; Marsicano v. City of Birmingham, 165 Ala. 405, 51 So. 608.

When the averments of count A are construed most strongly against the pleader, the averment that plaintiff "on, to-wit, the 15th day of March, 1933, while another group policy of insurance, issued by the defendant to the members of said Pioneer Insurance Club in lieu of said policy of insurance, was in force and effect as to plaintiff by reason of the payment of the premiums due thereon for plaintiff's insurance, and while plaintiff was so totally and permanently disabled as aforesaid, the plaintiff did furnish to the defendant due proof of such disability," falls short of showing that such proof was furnished under the policy in suit, or that the insurance which he seeks to recover was in force when such proof was so furnished. (Italics supplied.)

Assuming that group policy No. 180-G, certificate No. 1762, issued to the Pioneer Insurance Club, December 1, 1932, was in fact a renewal of the former group policy No. 149-G, certificate No. 1762, continuing in full force the insurance on plaintiff's life, with total permanent disability benefits, it is clear that plaintiff failed of compliance with the provision of the policy in respect to proof.

Plaintiff testified, "I asked the defendant for blanks for making claim under my policy. They supplied them to me, Dr. Carraway filled them out and I filled out one myself. *** I turned them over to Protective Life Insurance Company *** the defendant in this case"; that they (Protective Life Insurance Company) had not paid him anything; "I believe I turned them over to the defendant about the first day of February last year (1933). I received this letter after I turned the papers in."

The letter was written on a letterhead of "Protective Life Insurance Co., S.F. Clabaugh, Pres., Birmingham, Alabama," addressed to "A.L. Fairley, Secretary" and "Mr. Tom A. Hale" in respect to "G-180-1762," and read:

"We have given careful consideration to your claim for total and permanent disability benefits but the information furnished is not at all conclusive that your present condition is permanent. We would refer you to the clause in your group certificate wherein it must be shown that a disability must be total and must also be permanent before the benefits are available. In view of this, the company is obliged to disallow the claim.

"It is expressly stipulated that by pointing out the above facts the company does not waive, and hereby expressly reserves the right to avail itself of all other defenses it may have to said policy.

"Yours very truly,

"A.L. Fairley, Secretary."

The plaintiff also offered as evidence the defendant's answers to interrogatories propounded under the statute. The answer relative to the proof of total permanent disability is: "On March 15, 1933, plaintiff furnished defendant with completed forms, which forms are used to make proof of total and permanent disability, but the forms as completed and furnished by plaintiff did not show that he was totally and permanently disabled. One form was signed by plaintiff in which he stated that he did not know whether his disability presumably would continue for life, and one form was signed by an attending physician in which it was stated that the plaintiff would completely recover. These are the only proofs furnished by the plaintiff."

This is all the evidence showed or tended to show on the question of plaintiff's furnishing proof of his disability. When it is viewed in its light most favorable to the plaintiff, it is clearly insufficient as showing that plaintiff furnished "due proof" that plaintiff had become "totally and permanently disabled by bodily injury or disease," and that he was then or would be "at all times thereafter, wholly prevented thereby from engaging in any gainful occupation" within the meaning of the policy, and it was wholly insufficient to warrant the jury in so finding. Equitable Life Assur. Soc. v. Dorriety (Ala.Sup.) 157 So. 59.

Whether it be the death of the insured or his total disability that matures the contract, the insurer is liable for the full amount of the insurance; in this case $2,000.

In the respect just stated, the policy in the instant case is different from the policies considered in cases heretofore decided by this court involving clauses insuring against "permanent total disability."

In United States Casualty Co. v. Perryman, 203 Ala 212, 82 So. 462, the basis of the suit was an accident insurance policy providing "for the payment to the insured of $25 per week for total disablement, and of $12.50 per week for partial disablement." The question of permanent total...