36 A.2d 430 | Pa. | 1944
In an action of assumpsit to recover, among other claims, total and permanent disability benefits on two policies of insurance issued by the Prudential Insurance Company of America on the life of Bowman M. McMeekin, a jury found for the plaintiff in the sum of $27,571.00. The defendant moved for a new trial and judgment non obstante veredicto.
Bowman M. McMeekin became totally disabled on November 7, 1930, of which proper notice and proofs of claim were submitted to the company on February 20, 1931. In April, 1931, a duly authorized representative of the defendant company advised the plaintiff that the company did not refuse to pay the disability payments, but wished time to ascertain whether the total disability was permanent, and when so determined they would make the disability payments from the time he became totally and permanently disabled. The plaintiff states: "Well, I relied on these statements made by Mr. Clayton Perry, because to the best of my knowledge and belief, and based on written information I had from the home office of The Prudential Insurance Company, he was their appointed representative who was to explain to me their stand relative to my claim for disability." (See Arlotte et al. v. National Liberty InsuranceCompany,
On September 25, 1941, McMeekin wrote to the defendant company concerning the cash surrender value of his policies, and the company directed their agent to call on McMeekin. At that conference the agent told McMeekin that if the company had not been paying him disability payments "there certainly must be some mistake or misunderstanding, because you are entitled to it" and "that eventually he felt sure the company would render a decision in my case." The plaintiff, hearing nothing further from the company, on June 26, 1942, entered this suit and, after trial, a verdict was returned covering disability payments due from the time of proof of disability to the entry of suit, with interest thereon.
The first complaint of appellant is that it should have been allowed at the trial to amend its affidavit of defense to include abandonment by the plaintiff of any claims he might have for disability under his policies. Although the court reserved this question at the start of the trial, he allowed all of the evidence concerning abandonment to go into the record. At a further discussion of the subject, it was agreed that, regardless of the amendment, the jury should pass on the facts of the case and if the verdict was for the defendant, the question would not arise, but if the verdict was for the plaintiff, "it may be taken away from him, if your theory of abandonment has the total merit of the court. Therefore I come back to what I said. The Court understands that your objection as to the theory of abandonment goes to the entire case." To this, counsel for the defendant answered "Yes." Thereafter the case proceeded as though the amendment to the pleading had been allowed, and no objections were raised to evidence on this subject. The Court through his charge pointed out the delay of the plaintiff in bringing his suit and told the jury to consider it in connection with the plaintiff's claims. At the conclusion of the charge the Court asked counsel for "anything further, — any corrections, changes, amendments, supplements, modifications?" Counsel for defendant *571
stated, "You will recall we discussed in chambers the theory of abandonment and statute of limitations." And the trial judge replied, "I am leaving it all to the jury." Counsel asked for no further charge or ruling. Since the trial proceeded as if the amendment to the affidavit of defense had been allowed, the defendant was in no way harmed. After a trial on the merits, no defect of pleading, which could have been raised before trial, will be fatal to the judgment, unless it is shown to have injuriously affected the trial. See Erie City Iron Works v.Barber et al.,
The defendant's claim of abandonment could have no merit under the facts of this case. The defendant does not deny that the plaintiff was asked to wait, but says he should have taken affirmative action on his claim. The company, after requesting time to consider the application and proof of claim, never notified the plaintiff that it had been rejected. It owed the insured good faith and prompt notification of objections to his claim and an opportunity to meet them: Gould v. Insurance Co.,
Another defense of the company is that the Statute of Limitations acted to bar that portion of the claim for disability payments, for which plaintiff recovered, beyond six years before the institution of this action. Most of the cases cited by appellant in its brief deal with situations where the company had definitely rejected the claim of the plaintiff, and his only course then open was to bring suit. Here we do not have at any time a rejection of the claim by the defendant company. The delay was due to the company's request for time as well as the character of their contract which required a certain amount of time to necessarily elapse in order to establish total and permanent disability1 on account of the nature of the illness of the plaintiff. If in the course of the negotiations the company gave the plaintiff reasonable grounds for believing that the time limit would be extended or that such provision would not be strictly enforced, it could not subsequently insist on its strict enforcement without giving him a reasonable time thereafter to bring his action: Sudnickv. Home Friendly Insurance Company,
The plaintiff contended that the representative of the company at the same time he waived the limitation of action also agreed to return the premiums paid subsequent to filing proof of disability. The company contends that since the jury found for the defendant on this phase of the case, it showed conclusively that part of the oral statement of the plaintiff was untrue and therefore "the remainder of the statement, allegedly made simultaneously, [cannot] support a verdict for plaintiff." This was fully answered in the opinion of the learned trial judge: "The attempt to tie the two together is not warranted. While an agreement for return of premiums had to be found to sustain a recovery of them, there need be no agreement to pay disability benefits; plaintiff's proof of total and permanent disability establishes his right to *574 them. Plaintiff did not assert an agreement to pay benefits, but a promise to consider and render a decision on his claim. He further asserted an agreement to return premiums if defendant's consideration was favorable to his claim; it turned out that it was not and he was forced to commence this suit. Since plaintiff's testimony did not show an agreement to pay back premiums in any event but only if the company favorably decided his claim, and this does not include a decision against defendant after lawsuit, the jury's finding was justified and not inconsistent."
Judgment affirmed.
