Provident Life & Acc. Ins. Co. of Chattanooga, Tenn. v. Henson
| Decision Date | 19 March 1940 |
| Docket Number | 28934. |
| Citation | 101 P.2d 838,187 Okla. 150,1940 OK 139 |
| Parties | PROVIDENT LIFE & ACCIDENT INS. CO. OF CHATTANOOGA, TENN., v. HENSON. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 30, 1940.
Syllabus by the Court.
1. Plaintiff seeks recovery for accidental death of insured under an insurance policy providing indemnity for certain injuries, loss of time, and loss of life resulting directly and exclusively from bodily injuries. The policy required written notice of injury on which claim may be based within 20 days of the accident, and immediate notice in event of accidental death. Held, that in case of accidental death, immediate notice thereof is required.
2. The term "immediate notice of death" will be construed to mean such notice as is reasonable under the circumstances. It is a question of fact for determination by the jury, its finding thereon will not be disturbed if there is any evidence reasonably tending to sustain it.
3. An amendment, which should have been allowed, if leave to make it had been asked, so as to conform the petition to the evidence adduced by defendant, will, on appeal, be regarded as having been made.
4. The test applied to a demurrer to the evidence is that all of the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn therefrom, are admitted. The court cannot weigh conflicting evidence, but must treat as withdrawn the evidence which is most favorable to the demurrant. Oklahoma Hospital v. Brown, 87 Okl. 46 208 P. 785.
5. A verdict should be directed for defendant only when the evidence with all inferences reasonably deducible therefrom is insufficient to support a verdict for plaintiff.
6. In an action on an insurance contract, in order to sustain a defense that the accident was contributed to by disease or bodily or mental infirmity so as to prevent a recovery, the evidence must disclose that the disease or infirmity was so considerable or significant as to be characterized as disease or infirmity in the common speech of men. Maryland Casualty Co. v. Hazen, 182 Okl. 623, 79 P.2d 577.
Appeal from District Court, Mayes County; N. B. Johnson, Judge.
Action by Mrs. Iris Henson against the Provident Life & Accident Insurance Company of Chattanooga, Tenn., to recover on an accident insurance policy issued to the plaintiff's deceased husband by the defendant. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
The test applied to a demurrer to the evidence is that all facts which the evidence in the slightest degree tends to prove and all inferences or conclusions which may be reasonably and logically drawn therefrom, are admitted.
H. L. Smith, of Tulsa, for plaintiff in error.
A. C. Brewster, of Pryor, for defendant in error.
Mrs. Iris Henson brought this action to recover on an accident insurance policy issued to her deceased husband, Jesse A. Henson, by defendant, the Provident Life and Accident Insurance Company of Chattanooga, Tennessee. From a judgment and order overruling a motion for a new trial, the latter prosecutes this appeal. The parties will be referred to as plaintiff and defendant in the order in which they appeared in the trial court.
Plaintiff alleged deceased, while engaged in regular employment as a section hand, suffered a sunstroke, June 22, 1936; that the sunstroke was the sole and exclusive cause of his death, September 23, 1936; that within three or four days thereafter plaintiff notified defendant thereof orally and in writing; that after a full investigation of deceased's death defendant attempted to settle plaintiff's claim by offering to pay her a certain sum thereby waiving formal proof of death.
Defendant pleaded no written notice of injury had been submitted within 20 days after the accident as required by the policy; that death did not result solely from an injury as described in the insuring clause within 120 days from date of the accident; and that death was not solely the result of bodily injuries, but resulted in part from disease or bodily infirmity.
The insurance contract, copy of which was attached to plaintiff's petition, provided for payment of indemnity for loss of life resulting directly and exclusively from bodily injuries sustained solely through external, violent and accidental means. It also provided:
The first proposition presented in defendant's brief is, the trial court erred in overruling defendant's demurrer to plaintiff's evidence and in refusing to peremptorily instruct a verdict for defendant. Thereunder defendant argues three alleged errors which will be considered separately.
It is first urged that Section 4, of the policy, supra, required notice of deceased's injury within 20 days after the accident. Admittedly no such notice was given.
This contention is untenable. By the last sentence of said section it is provided that immediate notice must be given in case of accidental death. If insured was claiming disability benefits because of injury, defendant's contention might be sound, but here plaintiff, the beneficiary, not the insured is claiming for loss of insured's life because of accidental injury. In such a case the last sentence of Section 4, supra, applies and "immediate notice" of death only is required.
This leads to defendant's second contention that "immediate notice" of death was not given. It is conceded "immediate notice" is construed to mean reasonable notice, that is, within a reasonable time under the circumstances.
Plaintiff testified her husband died September 23, 1936; that he was buried Sunday, September 27, and that on the following day, Monday, September 28, she had a Justice of the Peace prepare a notice of death; that said notice, with sufficient postage thereon, was addressed to defendant and properly placed in the United States mail; and that it had never been returned. Defendant's claim-agent testified the first notice of death received was October 5, 1936. Apparently this was the one plaintiff mailed September 28. It was shown two days was the regular time required for delivery of a letter addressed to defendant and mailed at plaintiff's post office. Defendant did not introduce the notice received October 5, or explain its failure so to do. If the notice was postmarked or dated at a time other than that testified by plaintiff, defendant could have so shown. What constituted a reasonable time under the circumstances was a question of fact properly submitted to the jury, and the evidence was sufficient to justify a finding that "immediate", that is, reasonable notice of death was given. Defendant's contention is without merit.
Defendant next urges plaintiff has not shown defendant denied liability on grounds other than failure to furnish proof of death within 90 days as required by Section 7 of the policy, supra.
It is true plaintiff pleaded and relied upon an implied waiver which she attempted to prove by specific actions of defendant subsequent to expiration of the 90-day period for submission of proof.
Defendant cites Continental Insurance Co. v. Chance, 48 Okl 324, 150 P. 114; North British & Mercantile Ins. Co. v. Lucky Strike Oil & Gas Co., 70 Okl. 146, 173 P. 845, 22 A.L.R. 398; and Palatine Ins. Co. v. Lynn, 42 Okl. 486, 141 P. 1167. Paragraph 4 of the syllabus in the Chance case, supra, reads: "When...
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