Ross v. First American Insurance Company
| Decision Date | 29 September 1933 |
| Docket Number | 28775 |
| Citation | 250 N.W. 75,125 Neb. 329 |
| Parties | WILLIAM ROSS, APPELLEE, v. FIRST AMERICAN INSURANCE COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lincoln county: J. LEONARD TEWELL, JUDGE. Affirmed on condition.
AFFIRMED ON CONDITION.
Syllabus by the Court.
1. The issues presented by the pleadings in this action held to be triable as an action at law.
2. The facts stated in the opinion held to show a sufficient offer of payment of a note, given for a premium due on a health and accident policy, to entitle the insured to maintain an action thereon to recover indemnity for a loss sustained thereunder.
3. Where a health and accident policy requires written notice of injury or of sickness on which a claim may be based to be given the insurer within 20 days after the accident causing such injury or within 10 days after the commencement of disability from such sickness, it is sufficient compliance therewith on the part of an insured, who has received an injury apparently trivial in its nature but which thereafter causes an illness resulting in total disability, that he gives such notice when a condition developed such as would warn a person of ordinary and reasonable prudence that a disability had occurred or might occur therefrom which would entitle him to indemnity under his contract of insurance.
4. Where, prior to the commencement of this action, the insurer denied liability and gave as its only reason the alleged fraudulent procurement of the policy, and that on such grounds it elected to rescind, the insurer cannot, after litigation had been begun, change its ground and assert as a defense the failure to give notice of loss within the time required by the contract of insurance.
5. Ordinarily an estoppel or waiver must be pleaded by the party invoking it, but where the facts showing an estoppel or waiver are within the issues made by the pleadings and the evidence thereof is admissible for any purpose, it is not necessary that the estoppel or waiver shall be specially pleaded.
6. French v. Fidelity & Casualty Co., 135 Wis. 259, 115 N.W. 869, 17 L.R.A. (N S.) 1011.
7. Upon the facts set out in the opinion, held, that the knowledge and information acquired by the agent of the insurer at the time the application for insurance was written by such agent, were imputed to his principal.
8. The mere failure or omission to state the name of a physician and a treatment by him for some temporary indisposition or ailment will not avoid the policy.
9. Where a health and accident policy provides for the payment of increased indemnity for necessary removal and treatment in a regularly incorporated hospital, a recovery cannot be had thereon for treatment in a hospital other than an incorporated one.
10. Evidence examined and held sufficient to support the verdict of the jury, except as to the amount allowed for hospital benefits.
Appeal from District Court, Lincoln County; Tewell, Judge.
Action by William Ross against the First American Insurance Company. From a judgment for plaintiff, defendant appeals.
Affirmed on condition.
Albert S. Johnston, for appellant.
Beeler, Crosby & Baskins, contra.
Heard before GOSS, C. J., GOOD, DAY and PAINE, JJ., and CHASE and LOVEL S. HASTINGS, District Judges.
This action was brought by William Ross, plaintiff and appellee, against the First American Insurance Company, defendant and appellant, to recover indemnity upon an accident and health insurance policy issued by the defendant. On a trial to a jury a verdict was returned in favor of the plaintiff in the sum of $ 879.16; judgment was entered on the verdict, and defendant appeals.
It is admitted in the pleadings that on the 23d day of May, 1931, the defendant for a premium of $ 260 executed and delivered to plaintiff the five year term accident and health policy sued upon. It appears from the evidence that the plaintiff in payment of the premium executed and delivered to the defendant his note for $ 260, dated May 20, 1931, due in six months after date, with interest at 6 per cent. per annum.
It is alleged in the petition that on June 12, 1931, while said policy was in effect, plaintiff suffered an injury by stepping upon and piercing his left heel with a rusty nail; that plaintiff suffered a total disability therefrom which was continuous up to the time of the filing of his petition on April 28, 1932, and that from July 3, 1931, he was confined in a hospital for the treatment of the disability arising from said injury for a period of ten months.
The defendant in its answer denied all the allegations of plaintiff's petition except the issuance and delivery of the policy and the giving of the premium note. Several affirmative defenses are pleaded in the answer, which are: (1) Failure to pay or offer to pay or to confess judgment for the premium note; (2) false statements in the application which were material to the risk and hazard assumed and contributed to the loss; (3) that the disability existed at the time the policy was issued and was due in part, at least, to bodily infirmity, and not covered by the policy; (4) and that defendant, after notice of its election to rescind, had rescinded the contract of insurance for fraudulent misstatements contained in the application and had returned the premium note to plaintiff.
The reply was a general denial of the affirmative defenses alleged in defendant's answer and a plea in avoidance of the alleged breach for failure to pay the premium note.
Under the issues so framed, defendant, before trial and at the close of the evidence, moved the court for a trial of the action in equity on the sole ground that the answer by the defendant prayed for the cancelation of the policy. Both motions were overruled and the rulings are assigned as error.
The cause of action presented by the petition of the plaintiff is purely a law action and before such action is triable in equity the equitable nature of the defense must clearly appear from the facts alleged in the answer, to defeat the plaintiff of his right to a trial to a jury. The facts alleged in the answer as a defense to plaintiff's cause of action do not present a defense cognizable solely in equity. The mere fact that the plaintiff did not, on demand, surrender the policy, after a loss thereon, for cancelation did not change the action from one at law to one in equity.
The alleged defense that the policy was procured by the plaintiff by false statements made in the application, in the suppression or concealment of facts, was as available and complete as a defense to an action at law as it would have been in equity. A determination of the issues in favor of the defendant would have been an adjudication of the rights of the plaintiff under the policy and would have operated as effectively to bar any future recovery thereon as a cancelation by decree of the court in an action in equity. The issues having been determined in favor of the plaintiff, the right of the defendant to a rescission and cancelation of the policy was thereby determined against it and there was nothing left for a court of equity to act upon. The motions were properly overruled.
It is contended by counsel for the defendant that plaintiff, being in default for nonpayment of the premium note, could not maintain an action on the policy in the absence of an offer to pay or confess judgment thereon. The policy contains no provision for forfeiture for failure to pay a premium when due. It contains a provision, however, that the company at its option may suspend the policy during the period the premium is due and unpaid. The defendant never exercised that option, nor did it make any demand for payment.
The policy also contains the provision: "Upon the payment of any claim hereunder, any premium then due and unpaid or covered by any written order, or note or check may be deducted therefrom." The note became due on November 20, 1931, and previous to that date plaintiff had sustained a loss, which, if it entitled him to indemnity, was greatly in excess of the amount due on the note. The defendant did not deny liability for the loss until more than a month after the note matured. Before the maturity of the note plaintiff wrote defendant and asked it to give the amount that was due on his note and whether it wished it paid by draft or by deducting the amount due from the indemnity due him under his policy. Thereafter, and before the company denied liability, plaintiff again wrote the company asking for settlement of his claim and authorized the company to deduct therefrom the amount due upon the note. The company did not reply to the first letter. It replied to the second letter and told him that it would have a representative out to see him in reference to his claim. On December 23, 1931, the company finally denied liability, gave notice of its election to rescind, and returned the note to the plaintiff. After it gave notice of rescission, it is evident that any offer or tender of payment by the plaintiff would not have been accepted. Thereafter plaintiff was not required to offer or tender payment of the note prior to the commencement of the suit. Bundy v. Wills, 88 Neb. 554, 130 N.W. 273; Filley v. Walker, 28 Neb. 506, 44 N.W. 737; 26 R. C. L. 624, sec. 3.
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Ross v. First Am. Ins. Co.
...125 Neb. 329250 N.W. 75ROSSv.FIRST AMERICAN INS. CO.No. 28775.Supreme Court of Nebraska.Sept. 29, [250 N.W. 76]Syllabus by the Court. 1. The issues presented by the pleadings in this action held to be triable as an action at law. 2. The facts stated in the opinion held to show a sufficient ......