Skibbie v. The Liberty Life Insurance Company

• Decision Date: 08 March 1930
• Docket Number: 29,164
• Citation: 285 P. 581,130 Kan. 121
• Parties: JOHN SKIBBIE, Appellee, v. THE LIBERTY LIFE INSURANCE COMPANY, Appellant
• Court: Kansas Supreme Court

285 P. 581

130 Kan. 121

JOHN SKIBBIE, Appellee, v. THE LIBERTY LIFE INSURANCE COMPANY, Appellant

No. 29,164

Supreme Court of Kansas

March 8, 1930

Decided January, 1930.

Appeal from Crawford district court, division No. 1; LELAND M RESLER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ACCIDENT INSURANCE--Proof of Loss--Waiver. Under an accident insurance policy, part payment by the defendant of the amount stipulated in the policy and an admission made by its counsel in its trial statement to the jury in an action on the policy, in which statement the defendant claimed liability under the policy on a clause different from that relied on by the plaintiff, constituted a waiver of the conditions of the policy concerning proofs to be made to the defendant company.

2. SAME--Accidental Injury--Evidence--Findings. Under the evidence and the findings of the jury, it is held that the defendant company is liable under the accident provisions of its insurance policy issued to the plaintiff.

3. APPEAL AND ERROR--Review--Matters Not Presented to Trial Court. "Alleged errors not brought to the attention of the trial court cannot form a basis for review in an appellate court." (Toops v. Atchison, T. & S. F. Rly. Co., 128 Kan. 189, 277 P. 57, followed.)

Stephen H. Allen, Otis S. Allen and George S. Allen, all of Topeka, for the appellant.

Sylvan Bruner, C. S. Denison and E. V. Bruce, all of Pittsburg, for the appellee.

OPINION

MARSHALL, J.:

In this action the plaintiff recovered judgment against the defendant on a health and accident insurance policy, and the defendant appeals.

The plaintiff alleged that the defendant had issued to him, on August 26, 1927, a policy insuring him "against disability resulting from external, violent, and accidental means"; that on the 5th day of December, 1927, he was externally, violently, and accidentally injured in the manner set out in the petition; that at the expiration of the first month of disability arising from the accident, but before it was discerned that the disability was permanent in character, the defendant paid to the plaintiff the sum of fifty dollars under the policy; and that since that time the defendant has neglected, failed and refused to pay the plaintiff any further sum. The plaintiff asked judgment for $ 2,300.

The policy contained the following provisions:

"Part 1. The Liberty Life Insurance Company . . . will maintain this policy in force against--

"Part 2. (1) The effect resulting exclusively of all other causes from bodily injury sustained during the life of this policy solely through external, violent and accidental means . . . subject to all the conditions, limitations and exclusions and within the amounts hereinafter expressed, said bodily injury so sustained being hereinafter referred to as 'such injury,' and,

"(2) Disability resulting from illness which is contracted and begins during the life of this policy and after it has been maintained in continuous force for fifteen days from its date, subject to all the conditions, limitations and exclusions and within the amounts hereinafter expressed, said illness so contracted and beginning, being hereinafter referred to as 'such illness,' as follows:

"Part 3. Principal sum, $ 200; monthly accident indemnity, $ 50; monthly sickness indemnity, $ 50.

. . . .

"Part 5. Or if such bodily injury shall not result in any of the losses enumerated in Part 4, but shall from the date of such injury directly, wholly and continuously disable and prevent the insured from attending to any and every kind of duty pertaining to any gainful occupation, the company will pay him the monthly indemnity specified in Part 3 so long as the insured lives and suffers such total disability, not exceeding twenty-four consecutive months.

"Part 6. If any such sickness contracted by the insured, during the term of this policy, or any renewal thereof, and not herein excepted, and for which the insured is regularly treated by a legally qualified physician, necessarily and continuously prevents the insured from performing any and every kind of duty pertaining to any gainful occupation, the company will pay the insured for the period of total loss of time not exceeding six consecutive months, the monthly indemnity specified in Part 3.

. . . .

"Part 9. Standard Provisions. . . . (7) Affirmative proof of loss must be furnished to the company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the company is liable, and in case of claim for any other loss, within ninety days after the date of such loss. . . . (9) All indemnities provided in this policy for loss, other than that of time on account of disability, will be paid within thirty days after receipt of due proof.

"(10) Upon request of the insured and subject to due proof of loss, all of the accrued indemnity for loss of time on account of disability will be paid at the expiration of each thirty days during the continuance of the period for which the company is liable and any balance remaining unpaid at the termination of such period will be paid immediately upon receipt of due proof. . . .

"(14) No action at law or in equity shall be brought to recover on this policy prior to the expiration of sixty days after proof of the loss has been filed in accordance with the requirements of this policy, nor shall such action be brought at all unless brought within five years from the expiration of the time within which proof of loss is required by the policy.

"Part 10. Additional Provisions. . . . (6) If the insured is disabled for more than 30 days he or his representative shall furnish the company every 30 days, or as near thereto as may be reasonably possible, a report in writing from the attending physician or surgeon fully stating the condition of the insured and the probable duration of disability."

The answer consisted of a denial of the allegations of the petition. No affirmative defense was pleaded. The abstract of the defendant contains the following:

"After the accident Mr. Hunsaker, the agent of the Liberty Life Insurance Company who took his [plaintiff's] application, saw him. He gave him a report blank which he sent in. Following that he received $ 50 from the Liberty Life Insurance Company. The company also had him examined by two doctors, Doctor McKay and Doctor Ulric. He also testified that a few days before the trial defendant's attorney requested him to go to Doctor Smith's office in Pittsburg for an examination, but that when the attorney learned that Doctor Smith had taken some X-ray pictures 'he said that was all he wanted.'"

The counter abstract discloses that the defendant in its trial statement to the jury said:

"Gentlemen of the jury, the reason that the defendant refused to pay the plaintiff any more than $ 50 on his claim, in this cause, is that the defendant had the plaintiff examined by doctors, and that such examination disclosed that his disability was not due to an accident, but is due to an overexertion and lame or sprained back on his part, and his claim therefore comes within what is known as the monthly illness indemnity clause of the policy, which provides for only six months indemnity at the rate of $...