97 Tenn. 1 | Tenn. | 1896
This case was disposed of on a former day of this term in an oral opinion. Since then 'the plaintiff in error has submitted an earnest petition for a rehearing, in which it is insisted that this Court, by wrong processes, had reached a judgment which is highly prejudicial to petitioner. In order to guard against all misunderstanding of the exact points determined by this Court, it is thought best to file this written opinion, which will - embrace not only the questions disposed of orally, but those that have been presented and considered on the rehearing.
The facts of this case, as disclosed by the record, are briefly these: The plaintiff in error is an accident insurance company, incorporated under the laws of Michigan, with a general agent for the State of Tennessee and local agents in the city of Memphis. On the twelfth of December, 1894, one W. E. Davis, the intestate of the defendant in error, purchased from one of these local agents four tickets, of the value of $3,000 each, in which the said company, for the consideration of one dollar, paid at the delivery thereof, agreed to- insure the purchaser against “immediate, continuous, and total disability, or death, by external and accidental injuries” received during the period of twenty-four hours from the hour of 12 m. of the day of the purchase. Each of these tickets contained exceptions, which it is unnecessary to set • out, and had printed on its reverse side certain conditions, which are as follows:
*4 ‘‘AGREEMENTS AND CONDITIONS UNDER WHICH THIS TICKET IS ISSUED AND ACCEPTED.
“1. This insurance does not cover disappearance; nor suicide, sane or insane; nor injuries of which there is no visible mark on the body; nor accident; nor loss of limb or of sight; nor disability resulting wholly or partly, directly or indirectly, from any of the following causes, conditions, or acts, or when the insured is under the influence of, or effected by, any such cause, condition, or act, viz.: Disease, bodily or mental infirmity, hernia, orchitis, fits, vertigo, sleep-walking; medical or surgical treatment or operation (amputation necessitated solely by injuries, and made within ninety days after the-accident, excepted); intoxication or narcotism; voluntary or involuntary taking of poison; contact with poisonous substances, or inhalation of gas or vapor; war or riot; sunstroke or freezing; internal injuries (inflicted by the insured or any other person); voluntary overexertion, wrestling, lifting, racing; voluntary or unnecessary exposure to danger; entering or trying to enter or leave a moving conveyance using steam as a motor (cable and electric cars excepted); riding in or on any conveyance not provided for the transportation of passengers; walking or being on the railroad or bridge of any railway.
“2. Immediate written notice. must be given the company, at its home office, Detroit, Mich., of any accident and injury for which a claim is -to be made, with full particulars thereof and full name and ad*5 dress of tbe insured; and, unless proof of death, or of loss of limb or sight, or of duration of disability, be likewise supplied within two months of time of death or loss of limb or sight, or of termination of disability, any and all claims against said company shall be forfeited. Legal proceedings for recovery hereunder shall not be brought till after three months from the date of filing proof, nor brought at all unless within six months from time when right of action shall accrue.
“3. The insurance which may be issued to any one person, under this company’s accident tickets, is limited to two tickets, aggregating $6,000, with $30 weekly indemnity, and under tickets and policies together, to $16,000, with $80 weekly indemnity. Insurance or indemnity in excess of such limits shall be void from time of issue, and the premium for such excess shall be returned to the insured or his legal representatives on demand.
“4. Any medical adviser of the company shall be allowed, as often as he may require, to examine the person or body of the insured in respect to alleged injury or cause of death.”
Soon after purchasing these tickets, Davis embarked on a steamer for his home in Arkansas. About four o’clock on the morning of the thirteenth, he was called, at a point a few miles below the place of his destination, in order that he might be ready to disembark on reaching there. Pie came from his stateroom, partially dressed, in response to
1. It is insisted that the verdict of the jury is unsupported by any material evidence of the death of
2. It is said that the omission to furnish preliminary proofs of death was an absolute bar to recovery, and that the trial Judge was in error in not so directing the jury. In his declaration the plaintiff had averred that notice and full proof of death was given to the insurer, as required by the tickets sued on. By the second of its pleas on this point the defendant put its defense into an affirmative form, and, after setting out the condition as to notice and proof, a noncompliance with which, by its terms, worked a forfeiture of the insurance, then alleged that no proof of the death of the assured
Then, as to this, there was only a question of fact left to be submitted to the jury — that is, whether the general agent had made this statement to the representative of the deceased. If he did, then there is no doubt that its legal effect was to relieve the parties interested from making preliminary proofs. “A refusal to pay on any other ground or a denial of liability without giving reasons, waives the furnishing of proofs or defects in them if they have been furnished.” 2 May on Ins. (3d ed.), Sec. 469.
On this question of fact there was one witness who testified with positiveness that the general agent placed the company’s declination to pay on the distinct ground that this was simply a ‘ ‘ disappearance ’ ’ of Davis, and, as such, not covered by the insurance. This was material evidence upon which to rest the verdict of the jury, so far as this point was concerned. Railway v. Mahony, supra.
As has been already stated, there were four tickets of $3,000 each, sold at the same time and by the same agent to Davis. There is no testimony in the record to suggest that the purchaser’s attention was called to this condition, or that he had any notice of any limitation upon the authority of the agent in the sale of tickets, or, in fact, that there was any limitation upon his powers, except as imposed by the tickets themselves.
But, while the question of the waiver of this condition, resting upon the sale under the circumstances detailed, was very much debated at the bar, yet we did not undertake to settle it, but rested the right of the plaintiff below to recover on all these tickets upon another and wholly independent ground. In order that this may be clearly understood, it is again necessary for us to refer to the pleadings so far as they relate to the point in hand. The declaration contained four counts, each embracing one of these tickets or policies, as they are indiscriminately called. Each of these counts averred “that the defendant is a corporation by the laws of the State of Michigan, with power and authority to issue life and accident policies; that heretofore, to wit, on
It is to be remembered that this is not an action of tort. On the contrary, it is an action ex contractu upon four different instruments of writing, issued, as is averred by the insurer, for a considera
It would be impossible to find, we imagine, in any text-book or decided case of recognized authority, where the plea of £ ‘ not guilty ’ ’ was admitted as a plea of the general issue to a declaration on either written or unwritten contracts. The very definition of a plea of the “general issue” precludes such practice. It is a denial of the allegations upon which a recovery is sought. It £ £ has a form which varies with each action, but in any given action it is always the same. In debt on a simple contract, it is nil debet; in debt on a specialty, it is non est faebum; in detinue, non detmet; in trover, trespass, and trespass on the case, it is not guilty; in replevin, it is non cepit; and in assumpsit, it is non assumpsit. ” 18 Am. & Eng. Enc. L., 522.
The Code (M. & V.), §§ 3623, 3624, 3625, and 3626 expressly recognizes such pleading, and authorizes “a general denial of the plaintiff’s cause of action equivalent to the' general issue heretofore in use,” but, on filing such plea, requires notice of
This is not an answer to any averment in the declaration; in legal effect it was no plea, for “every plea in bar must be adapted to the nature of the action and conformable to the count.”
“If the defendant plead a plea not adapted to the nature of the action, as, nil debet in assumpsit or non assumpsit in debt, . . . the plaintiff may treat it as a nullity and sign judgment.” 1 Chitty on PL, *522; 1 Tidd Pr., *564.
If this be tiie sound rule, then this case stood without any plea of the general issue, and alone on the special pleas and the issues joined on them, under neither of which could the insurer avail himself of the condition in question. There' are Courts of the highest respectability which hold that ‘‘ stipu
But it is now urged in the petition for rehearing that this issue was raised by demurrer. It is true that an effort was made to present it, but it was. not raised. This contention rests on the third ground of demurrer, which is in these words: “Because the local agent of defendant in Memphis, as appears from the face of the tickets of insurance, made part of the declaration, had “no authority from defendant to issue tickets of insurance to W. E. Davis in
But it is insisted that plaintiff below, by making profert of these tickets, has made them and the con
It is earnestly pressed, however, that this holding of the Court places plaintiff in error in a worse
Applying this rule to the case at bar, where, in the declaration, the purchase of $12,000 of accident-policies, for a consideration, from the company, the death of the assured within the terms and life
Nor is there anything in Phœnix Ins. Co. v. Munday, 5 Cold., 548, or Plowman v. Foster, 6 Cold., 52, to support the contention of plaintiff in error. In both of these cases pleas of the general issue, warranted by the nature of the actions, were put in, and in each one the question was as to the scope of the plea in admitting evidence.
After a careful review of the record, we feel constrained to adhere to the conclusions heretofore announced. We are the less reluctant to do so because we believe that this is in accord with the merits of the case, for not only were these tickets embraced in one sale by the local agent in charge of them, but it is apparent that both the general agent for Tennessee of this company, located in Memphis, where these tickets were sold, and the president of the company, at Detroit, were fully advised in their official capacities, immediately after the death, of all the details of this claim, and neither this general agent, in his several conversations with, nor this president, in his reply to the letters of the representatives of Davis, gave an intimation that the
The petition for rehearing is overruled, and the judgment of affirmance heretofore pronounced will be maintained.