165 So. 834 | Ala. | 1936
The suit was on a policy of insurance for disability benefit.
The case was submitted on count B and other pleadings in short by consent. *556
It is established that, when a contract is clearly stated and expresses the intent of the parties, it will be so applied. McGifford v. Protective Life Ins. Co.,
Appellant propounds the question of the failure of proof as to the making of due proof of disability and that of the waiver of indorsement of approval of proof, if made, upon the policy. In the instant pleading, the obligation to pay the benefit is predicated upon receipt of due proof of disability, and casts upon the plaintiff the burden of showing that such due proof was made and given appellant as averred in count B. New York Life Ins. Co. v. Sinquefield, ante, p. 186,
In the Sinquefield Case, supra, it is declared that the obligation to pay disability benefits did not rest wholly upon the existence of disability, but upon the receipt by the company of due proof of disability, definitely made a condition precedent to an assumption by the insurer of the payment of such a benefit. The same rule was declared to obtain as to fire insurance in Central City Insurance Co. v. Oates,
It follows that, if there is prima facie evidence to the effect that due proof of disability was given defendant and there was no objection made to the proof of disability and notice given nor objection as to its sufficiency or contents, the jury, on the whole evidence, could infer the defendant had waived such insufficiency or that it declined or resisted payment on other grounds than that of the sufficiency of the claim made or notice or proof given. Globe Rutgers Fire Ins. Co. v. Pappas et al.,
It has been declared that there is a presumption, not conclusive, of prompt delivery of a letter mailed in the absence of evidence to the contrary (Corley v. Vizard et al.,
What, then, of the failure to give the general affirmative charge requested in writing by the defendant? McMillan v. Aiken et al.,
The written statements of the disability claimed were filled out on the company's blanks in the office of the defendant's general agent and duly mailed by such general agent to defendant's home office about December, 1929. This made a prima facie case for plaintiff of giving due proof to defendant and showing that such due proof was received by defendant in due course of mail or on a reasonably convenient date after posting, and placed upon the defendant the duty to approve as the contract stipulated or to disapprove. Such was the presumption that arose, placing upon defendant the duty of going forward with the evidence. Corinth Bank Trust Co. v. Cochran,
The defendant's general agent in this state who attended to the preliminary proof in said matter made statements that amounted to a waiver or estoppel. The evidence given by plaintiff, without objection, is as follows: "My policies have been in the hands of W. B. Folmar Sons since 1928. I left both of my policies down there. They are the policies I am suing on in this case. I saw Mr. Bibb Folmar again during the latter part of December, 1929. I went in there and asked *557 him if he had heard any more from the claim papers, and he said: 'No, I haven't.' He said: 'We haven't heard anything from them.' He said: 'Everything is all right; you needn't worry about it.' He said: 'Everything is all right; your disability will be all right and you need not worry about it.' I didn't do anything more about it at that time. * * * During the year 1930, and right on up to the time W. B. Folmar Sons gave up the State Managership of the Franklin Life Insurance Company, I saw Bibb Folmar off and on about my claim. He told me he was going to' look after it; that he was going to see about it, and he would put me off this time and that time, and said don't worry about it. The last premium that I paid was back in 1930, and they told me that I would not have to pay, that I wouldn't have any more trouble, and that the premiums were all waived.I paid it and they said: 'You can go ahead and pay it, but itwill be refunded to you.' Mr. Bibb Folmar told me that and that the premiums were waived. They never paid me, and I received nothing but a lot of promises." (Italics supplied.)
This was sufficient for the jury to rest thereon the defense of waiver or estoppel. Piedmont Arlington Life Insurance Company v. Young,
These statements, introduced without objection, became evidence (2 Jones on Evidence, p. 634, § 297), and were subject to the inference by the jury that due proof had been made, received, and the claim approved. National Life Insurance Co. of United States of America v. Reedy et al.,
In Piedmont Arlington Life Insurance Company v. Young,
"The policy, in the present case, shows on its face that it is of the class called 'participating.' — See 1 Phil. on Ins. 47; Patch v. Phœnix Mut. Life Ins. Co.,
"The present case presents strong claims to our consideration favorable to the assured. It is proved, and not denied, that in December, 1871, Young, the assured, notified Walker, the agent, from or through whom he had obtained the insurance, that he would pay no more premiums, and that he wanted a paid-up policy. Walker was still the agent of the defendant corporation. Instead of informing Young that his policy was non-participating and hence, not of a class which authorized him to obtain a paid-up policy; and instead of informing him that he must make his application in writing, Mr. Walker, the agent, replied that it was all right, and he would attend to it. This was a month before any default in the non-payment of premium. Walker was frequently afterwards called on to know if the paid-up policy had arrived, and at no time intimated a doubt of Young's right to it. When he first communicated Young's request to the insurance company in Virginia, is not shown. * * *
"We hold that the conduct of the agent in this case, and of the insurance company, estops the latter from denying that the demand of a paid-up policy was rightly made, even if such estoppel were necessary to protect his right, which we do not assert."
This has application to the pleading in short employed and the introduction in evidence of the foregoing statements by the general agent of defendant. It will be remembered that all pleadings except count B were in short by consent, and so of appellee's replications to such pleas. This method of pleading was sufficient to admit evidence of waiver or estoppel as answer to the pleas in question.
It is well insisted, under the circumstances in evidence, that due proof of the claim of disability was made or that the evidence made for plaintiff a prima facie case that plaintiff prepared due proof of disability on the company's blanks furnished for such purpose by the defendant through its general agent and the latter received and transmitted the same to defendant's home office for action of approval or disapproval. This the jury might have inferred and rested their judgment thereon. In the absence of such writing, the inference is that of due proof or a substantial compliance therewith. Equitable Life Assur. Soc. v. Dorriety,
The admission in evidence, over objection and exception, of the fact that, *558
on examination of plaintiff by physicians, the latter made statements to him and gave advice on which he acted, was without reversible error. These statements were a part of the res gestæ of the examination that caused him to retire from business, make his claim against the defendant for disability, for which this suit was brought, as well as claims against several other insurance companies, and which claims, or due proof thereof, are in evidence. The material issues of fact were plaintiff's disability vel non and the nature and extent, if he was suffering from disability. 29 C.J. p. 284; Rocci v. Massachusetts Accident Company,
In Mutual Life Insurance Company v. Tillman,
We find no error in overruling the motion for a new trial. The judgment of the circuit court is therefore affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.
