Prudential Ins. Co. v. Gray

Decision Date21 June 1934
Docket Number6 Div. 602.
Citation159 So. 265,230 Ala. 1
CourtAlabama Supreme Court

Rehearing Denied Oct. 4, 1934.

Certiorari to Court of Appeals.

Petition of Gilbreath M. Gray for certiorari to Court of Appeals to review and revise the judgment and decision of that court in Prudential Insurance Co. of America v. Gray, 159 So 262.

Writ awarded.

Taylor & Higgins, of Birmingham, for petitioner.

Harsh Harsh & Hare, of Birmingham, for respondent.

FOSTER Justice.

In the case of New England Mut. Life Ins. Co. v. Reynolds, 217 Ala. 307, 116 So. 151, 59 A. L. R. 1075, the waiver of the future premiums was the only question, and that was made to depend upon the circumstance that proof of disability was furnished before the premium became due. There was no disability insurance under which benefits existed before the premium was due in an amount equal to such premium.

In McGifford v. Protective Life Ins. Co., 227 Ala. 588 151 So. 349, there was insurance against disability as well as death, but the right did not exist by the express terms of the policy until the proof was made during the life of the policy.

But there is a difference between the existence of a right to disability and the accrual of the cause of action for the recovery. If the policy is so set up that the claim came into existence when the disability occurred, but that the cause of action did not accrue until proof of the disability was furnished, the delay of the proof not extending beyond a reasonable time (Provident Life & Accident Ins. Co. v. Heidelberg [Ala. Sup.] 154 So. 809) did not cut off the claim, though the proof was not furnished until after there was default in paying the subsequent premium.

The question of whether the proof is a condition to the existence of the claim or to the right to sue on a claim which had otherwise accrued, depends upon the terms of the policy which fixes the circumstances necessary to create the claim.

We have held, in respect to fire insurance, that, though the benefits are not payable until proof of loss is made, the failure to make the proof in the time designated does not destroy the right of action, but only postpones its maturity, provided the failure is not set up in the policy as a forfeiture of the claim. Westchester Fire Ins. Co. v. Green, 223 Ala. 121, 134 So. 881; Home Ins. Co. v. Murphy, 223 Ala. 566, 137 So. 393; National Fire Ins. Co. v. Tennessee Land Co., 224 Ala. 113, 139 So. 227; National Fire Ins. Co. v. Kinney, 224 Ala. 586, 141 So. 350.

The whole question is made to depend upon whether the requirement is set out in the policy as a condition to the existence of the claim or to the right of its immediate payment. The same sort of expression should have the same interpretation whether in a life, fire, accident, or disability insurance policy, if it is not affected by the character of the insurance. See Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837.

In the case of Bergholm v. Peoria Life Ins. Co., 284 U.S 489, 52 S.Ct. 230, 76 L.Ed. 416, the United States Supreme Court made a holding which seems to be on all fours with our case of McGifford v. Protective Life Ins. Co., supra, and New England Mut. Life Ins. Co. v. Reynolds, supra. But in the opinion they took the pains to make the very distinction which we have stated, and thereby to distinguish it from those cases cited in it relating to policies expressed substantially as that which we are here considering. It was there pointed out that in those cases the policy did not provide that the obligation to furnish the proof was a part of the condition either to the waiver of the premium or the existence of the claim, but the effect was only to require proof to be furnished in a reasonable time as we have held in ...

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  • Columbian Mut. Life Ins. Co. v. Gipson
    • United States
    • Mississippi Supreme Court
    • June 12, 1939
    ...the insured's right, but merely to the enforcement of his remedy. Columbian Mutual Life Ins. Co. v. Eaves, 185 So. 557; Prudential Life Ins. Co. v. Gray, 159 So. 265; Prudential Life Ins. Co. v. Kendrick, 90 S.W.2d Hershman v. John Hancock Mut. Life Ins. Co., 284 N.Y.S. 561; Minnesota Mutua......
  • Protective Life Ins. Co. v. Hale
    • United States
    • Alabama Supreme Court
    • March 28, 1935
    ... ... 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 ... ...
  • Columbian Mut. Life Ins. Co. v. Craft
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    • Mississippi Supreme Court
    • December 12, 1938
    ... ... similar and almost identical with the policy language ... involved in Minnesota Mut. Life Ins. Co. v ... Marshall, 29 F.2d 977; Prudential Ins. Co. of ... America v. Gray, 159 So. 265, 26 Ala. 268; Herschman ... v. John Hancock Mut. Life Ins. Co., 284 N.Y.S. 561; ... Prudential Ins ... ...
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    ...incapacity is removed." 10 Shea v. Ætna Life Ins. Co. (Mass.) 198 N.E. 909; Prudential Ins. Co. v. Gray, 26 Ala.App. 268, 159 So. 262; Id, 230 Ala. 1, 159 So. 265; Prudential Ins. Co. v. Cox, 254 Ky. 98, 71 S.W.(2d) 31; Home Life Ins. Co. v. Keys, 187 Ark. 796, 797, 62 S.W.(2d) 950, 11 Stor......
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