Wells v. Metropolitan Life Ins. Co.

• Decision Date: 15 April 1963
• Docket Number: No. 1,No. 40071,40071,1
• Parties: William H. WELLS, by next friend, v. METROPOLITAN LIFE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 634

131 S.E.2d 634

107 Ga.App. 826

William H. WELLS, by next friend, v. METROPOLITAN LIFE INSURANCE COMPANY.

No. 40071.

Court of Appeals of Georgia, Division No. 1.

April 15, 1963.

Rehearing Denied May 24, 1963.

Syllabus by the Court

1. The general grounds of the motion for new trial are without merit.

2. Special ground 4 complains of a portion of the charge in which the jury was instructed that they would have the pleadings out with them, might examine them and determine therefrom the contentions of the parties and the issues in the case, but that 'the pleadings are not evidence and you would not be authorized to use them other than that'; the error alleged being that the defendant had, in its answer, admitted some material allegations of the petition and that the charge deprived plaintiff of the benefit of the admissions to which he was entitled under Code § 38-402. While it was not strictly accurate and could have been couched in better language, the charge was not calculated to be misleading or confusing to the jury, not did it place on the plaintiff any additional burden. Certral of Ga. R. Co. v. DeLoach, 18 Ga.App. 362(9), 89 S.E. 433 (rev'd on other grounds, 246 U.S. 655, 38 S.Ct. 423, 62 L.Ed. 924); Carr v. Woodside Storage Co., 103 Ga.App. 858, 862(6), 120 S.E.2d 907 (rev'd on other grounds, 217 Ga. 438, 123 S.E.2d 261. See Beadles v. Bowen, 106 Ga.App. 34, 40, 126 S.E.2d 254. It must be assumed that in ascertaining the issues and contentions from the pleadings the jury did afford plaintiff the benefit of the defendant's admission absent any instruction that they should not do so.

3. For the same reason there is no merit in special ground 5 assigning error upon a portion of the charge that the defendant 'has denied the material allegations in plaintiff's petition.'

4. There was no error in the charge that unless the jury should believe that the insured's pregnancy commenced more than 30 days after the date of the policy plaintiff could not recover. The charge is consistent with out construction of the policy provisions.

5. The phrase 'of course' used in charging that it the jury should find that the preponderance of the evidence lies on the side of the defendant 'Why, of course, it would be your duty to find a verdict in favor of the defendant,' and that 'if you find, of course, that the plaintiff has not carried the burden of proof by a preponderance of the evidence, your verdict would be for the defendant', simply means 'in that event', or 'then'. It does not amount to an expression of opinion by the court that the defendant was entitled to prevail.

6. For refusal to charge a requested instruction to be error the request must be correct as an abstract principle of law and adjusted to the evidence.

7. A request to charge must be perfect, apt, legal, precisely adjusted to the issues and the evidence and a complete statement of the principle, requiring no inference. Thus, refusal of a request to charge, relative to certain correspondence between plaintiff's counsel and the insurance company, that statements in the letter from the company as to why payment of the claim was denied were self-serving and 'have no probative value' was not error, since the statements were relevant on the matter of whether or not there had been bad faith in refusing payment. Moreover, the correspondence was admitted in evidence without objection, and the question of its admissibility is neither raised nor dealt with here.

8. Refusal to charge requested instructions, though legal in substance, correct in form and adapted to the issues, is not error reviewable here when it appears that the requested instructions were covered in the general charge and there is no assignment of error that the request to charge was not given in its exact language. Griffith v. Newman, 217 Ga. 533(3), 123 S.E.2d 723; Dillard v. Jackson's Atlanta Ready Mix Concrete Co., 105 Ga.App. 607, 608(1), 125 S.E.2d 656; State Farm Mut. Auto Ins. Co. v. Rogers, 105 Ga.App. 778(5), 125 S.E.2d 893; Burns Brick Co. v. Adams, 106 Ga.App. 416, 419, 127 S.E.2d 26; Butler v. Reville, 107 Ga.App. 345, 130 S.E.2d 161.

William H. Wells, by next friend, brought suit against Metropolitan Life Insurance Company to recover hospital, drug and doctor bills resulting from the pregnancy of his wife, totaling $355, and for penalty and attorney's fees because of alleged bad faith in the refusal of Metropolitan to pay. The basis of the suit was what is generally known as a hospitalization poliy issued by Metropolitan to plaintiff on September 16, 1959 providing for the payment of certain hospital and medical expenses that might be incurred by reason of the illness of himself or members of his family. As affecting the company's liability for payment of the items of expense here claimed the policy provided:

'1. This policy does not cover, and no payment of any kind will be made for or on account of, any losses insured against that are caused by:

'(a) Any injury sustained, sickness contracted or physical condition existent, prior to the date of issue of this policy unless the sickness or physical condition had not manifested itself prior to such date.

'3. Maternity benefits. If, while this policy is in force, a female adult covered family member becomes confined in a legally constituted hospital because of childbirth or miscarriage resulting from pregnancy that commenced more than 30 days after the issue hereof, the company will pay the following benefits, subject to the terms and limitations of this policy:

'(a) The Normal Maternity Benefit specified on the first page if the pregnancy results in childbirth not requiring Caesarean section; one and one-half times such Normal Maternity Benefit in the case of a Caesarean section or operation for extopic pregnancy; or one-half such Normal Maternity Benefit if the pregnancy results in a miscarriage.

'(b) The benefits specified in Benefits Provisions 1 and 2 but only with respect to days of hospital confinement occurring, or surgical operations performed, on or after the tenth day following the date of such childbirth or miscarriage.

'With respect to payments for normal delivery, the requirement that such family member be confined in a hospital will be waived.

'Normal Maternity Benefit $100.'

On May 5, 1960 (7 months and 20 days after the policy was issued) plaintiff's wife was confined to a hospital where she gave birth by normal delivery to a child weighing 8 pounds, 12 ounces. She remained in the hospital until May 8 when she was discharged. In the proof of claim filed by plaintiff with Metropolitan he asserted that his wife's pregnancy symptoms first appeared in September, 1959, and the attending physician asserted that the approximate date of the beginning of the pregnancy was August 1, 1959.

The defendant denied any liability under the policy provisions, refused to pay the claim and defended the action on the grounds, first that the delivery did not result from a pregnancy occurring more than 30 days after the issuance of the policy and hence was excluded from coverage, and secondly, that even if such had been the case no benefits for hospital confinement would accrue until after the tenth day.

Upon a trial of the case a verdict was rendered for the defendant. To the overruling of an amended motion for new trial the plaintiff here excepts.

Randall Evans, Jr., Thomson, for plaintiff in error.

Rodney S. Cohen, Augusta, Robert E. Knox, Thomson, for defendant in error.

EBERHARDT, Judge.

1. Under the general grounds plaintiff insists that the provisions of the policy as contained in the quotation above from it as paragraph 1 and those in paragraph 3 for maternity benefits are conflicting, that he was entitled to have the policy construed in his favor and against the company, and that the evidence demanded a finding that his wife's pregnancy was a 'sickness or physical condition [that] had not manifested itself prior to' September 16, 1959, the date of the policy.

It is true that if the provisions of an insurance policy are ambiguous, or if the provisions in it are conflicting, it is to be construed in favor of the insured and against the company. Gill v. Federal Life & Cas. Co., 86 Ga.App. 455, 458, 71 S.E.2d 683. However, there are other rules of construction which must also be employed. 'Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any rider, endorsement, or application made a part of the policy.' Code Ann. § 56-2419. Even when there is an ambiguity 'the construction must be a reasonable and not a strained one.' Mattox v. New England Mut. Life Ins. Co., 25 Ga.App. 311, 103 S.E. 180. 'Courts are not called upon, because of the rule that contracts of insurance are to be strictly construed against the insured, and because the contract itself is one of insurance, to call forth doubt, through construction of plain and unambiguous provisions of such a contract.' Aetna Life Ins. Co. v. Padgett, 49 Ga.App. 666, 669, 176 S.E. 702, 703. 'A construction of an insurance policy to determine the liability imposed by it involves a consideration of all those essential provisions which fix, create, limit, or enlarge liability.' Fisher v. American Cas. Co., 194 Ga. 157, 159, 21 S.E.2d 68, 69. 'The whole contract must be construed together, so as to give effect to each material and valid clause thereof. It would be contrary to all rules of construction to select one clause in a contract and construe it to the exclusion of other clauses bearing on and affecting the same subject-matter, and at variance with it. It is not a question of ambiguity, as argued; for both clauses are perfectly clear, when standing alone. It is a question of the meaning of both clauses of the contract, when construed together.' Marbut v. Empire Life Ins. Co., 143 Ga. 654, 657, 85 S.E. 843, 835.

We find no ambiguity...