Provident Life & Accident Ins. Co. v. Broome

• Decision Date: 01 July 1933
• Citation: 66 S.W.2d 1041
• Court: Tennessee Supreme Court
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. v. BROOME.

66 S.W.2d 1041

PROVIDENT LIFE & ACCIDENT INS. CO. v. BROOME.

Court of Appeals of Tennessee, Eastern Section.

July 1, 1933.

Certiorari Denied by Supreme Court October 19, 1933.

Appeal in Error from Law Court of Hamilton; Oscar Yarnell, Judge.

Suit by Mrs. Dovie Mullican Broome against the Provident Life & Accident Insurance Company. To review a judgment in favor of the plaintiff, the defendant appeals in error.

Judgment affirmed.

John A. Chambliss, of Chattanooga, for plaintiff in error.

Williams & Williams, of Chattanooga, for defendant in error.

SENTER, Judge.

The parties will be referred to as in the court below, Mrs. Dovie Mullican Broome, plaintiff, and Provident Life & Accident Insurance Company, defendant.

This is a suit by plaintiff against the defendant to recover on a policy of insurance. The declaration avers that she was in the employment of the Richmond Hosiery Mills, of Rossvale, Ga., and procured from the defendant an insurance policy dated November 1, 1927. The declaration avers that she worked for the Richmond Hosiery Mills off and on for about eighteen years, and worked for said company after the issuance of said policy, and up to September 5, 1930, when she became desperately ill and totally disabled, since which time she has been and is now totally incapacitated from performing her usual work. The declaration avers that, after she became ill, she was examined by her physician who found her left kidney enlarged, and upon advice of her physician she was operated on and her left kidney removed, and since said operation she has suffered and now suffers from acute and severe pains in her spine and in her internal organs; that she has been taking treatment for these ailments without any relief or cure, and, since September 5, 1930, she has been and is now totally and wholly disabled because of said disease to do any work whatsoever. The declaration avers that after plaintiff became disabled, she presented her claim to the defendant, on or about October 1, 1931, soon after which the defendant's doctor examined plaintiff, after which defendant refused to pay plaintiff the amount due under her policy. The declaration sets out the following provisions contained in the policy sued on, and which are as follows:

"Total and Permanent Disability Benefits: If any employee shall furnish the Company with due proof that, while insured under said group life policy and before having obtained the age of sixty, he has become wholly disabled by bodily injury or disease and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for remuneration or profit, the Company will waive further payment of premiums as to such employee under the said group life policy the amount of insurance in force thereunder upon his or her life at the time of the receipt of due proof of such disability, in a single sum or in a fixed number of installments at the option of the employer, according to the table stated below, the first installment to be paid immediately upon receipt of satisfactory proof of such disability. (Here follows the table.)

"Any installments remaining unpaid at the death of the employee shall be payable as they become due to the beneficiary designated by such employee. Such remaining installments may be commuted into one sum on the basis of interest at the rate of 3½ per centum per annum."

Plaintiff avers in her declaration that she paid all premiums on said policy and fulfilled her part of said contract with the defendant; that she complied with the policy in making proof of her said claim, and defendant waived proof of claim by making an investigation thereof, and afterwards denying liability on the claim, and is therefore estopped from defending on any ground that plaintiff failed to make proof of claim as required by the contract. The declaration also seeks a recovery of the statutory penalty to cover cost and expenses on account of the willful failure of defendant to pay said claim and because such refusal to pay was not in good faith.

To the declaration, the defendant filed pleas as follows:

"1. For plea in this cause the defendant says that it does not owe the plaintiff as in the declaration alleged.

"2. For further plea in this cause the defendant says that it did not promise, undertake, or agree as in the declaration alleged."

To these pleas the plaintiff joined issue.

At the hearing of the cause the jury returned a verdict in favor of plaintiff for the sum of $1,000, but did not allow any recovery for the penalty sued for.

At the conclusion of all the evidence, the defendant moved the court for a directed verdict in its favor. Since one of the serious questions made on this appeal involves the motion for a directed verdict, we set out what occurred at the conclusion of all the evidence. The attorney for the defendant stated:

"I want to make a general motion for a directed verdict, if Your Honor please. The jury need not retire.

"Court: Yes, sir.

"Mr. Chambliss: Your Honor overrules the motion and we note an exception.

"Court: Yes, sir."

After the verdict of the jury, the defendant made a motion for a new trial. The grounds for the motion for a new trial were as follows:

"1. There was no evidence to support the verdict of the jury.

"2. The Court erred in failing and refusing to direct the jury to return a verdict for the defendant upon the motion made to this effect by the defendant.

"3. The undisputed evidence showed that the plaintiff had not complied with or brought herself within the terms of the contract sued upon so as to be entitled to recover thereon."

The court overruled the motion for a new trial and rendered judgment on the jury verdict for the sum of $1,000 in favor of plaintiff. From the action of the court in overruling its motion for a new trial and in rendering judgment against it and in favor of plaintiff, the defendant prayed and was granted an appeal in the nature of a writ of error to this court, which appeal has been perfected and errors assigned as follows:

"1. The Court erred in failing and refusing to grant the defendant a new trial on the ground that there was no evidence to support the verdict of the jury.

"2. The Court erred in failing and refusing to grant the defendant a new trial on the ground that it should have, on the motion of defendant, directed the jury to return a verdict for the defendant.

"3. The Court erred in failing and refusing to grant defendant a new trial for the reason that the undisputed evidence showed that the plaintiff had not complied with or brought herself within the terms of the contract sued upon so as to be entitled to recover thereon."

Under these several assignments of error the real contentions made by appellant are: First, that plaintiff should not have been allowed to recover the sum of $1,000 because there is a provision in the contract that in case there is total and permanent disability and due proof is made, the amount will be paid either in a single sum or in installments, at the option of the employer; that in the particular instance the plaintiff would be entitled to payment by installments, and would have a right to elect as to the amount per month and number of years such installments should run, the Richmond Hosiery Mills having exercised its option with respect to installment payments, as expressed in a letter to the defendant. Second, that plaintiff did not present proof of her claim within the period designated in the policy contract (thirty-one days) after her employment with the Richmond Hosiery Mills had terminated.

Appellant does not seem to make any serious contention, but admits that there was a conflict in the evidence as to whether or not plaintiff became totally and permanently disabled from pursuing any gainful occupation. And since we find that there was evidence to support the verdict on that question, it will not be further considered.

Appellee contends that neither of the two questions now relied upon by appellant can be considered on this appeal for the reason that these questions were not made in the trial of the case in the lower court, and at no time called to the attention of the trial judge, either in the motion for a directed verdict or in the motion for a new trial. In this connection it is further contended by appellee that at the beginning of the hearing of the case, and while Mrs. Broome was testifying as to her disability, the following occurred:

"Court: Gentlemen, is not the only question in this case, in view of this certificate, and in view of your admission a while ago, as to whether she is totally disabled or not?

"Mr. Chambliss: If your Honor please, I would rather not say that right now, because I would rather the case would develop a little further, and if I choose to make a motion for peremptory instructions.

"Judge Williams: If he is going to ambush me, I want to know what the claim is.

"Court: Go right ahead."

Again in the charge to the jury the trial judge on this subject stated to the jury as follows:

"Well, now, Gentlemen of the Jury, it seems from the argument in this case of counsel, that the only question involved is whether or not this plaintiff is totally and permanently disabled within the terms of this policy."

The attorney for the defendant did not at that time, or at any other time so far as disclosed by the record, make any objections to that statement made by the trial judge to the jury in his charge; nor did he offer any special requests to be given in charge presenting the questions now relied upon on this appeal.

When the motion for a directed verdict was made, the attorney for the defendant did not present either of these two questions, but stated to the court that he desired to make a motion for a directed verdict, but that it was not necessary that the jury be withdrawn, and from what was said as hereinbefore quoted, by the attorney for the defendant, no argument on the...