145 So. 33 | La. Ct. App. | 1932
This is a suit on an industrial insurance policy. Plaintiff claims eleven weeks' sick benefit at the rate of $5 per week, and asks that this amount be doubled and a reasonable attorney's fee added in accordance with the provisions of Act No.
There was judgment below in favor of the plaintiff for eleven weeks at $5 per week, or $55, but no allowance of double indemnity or attorney's fees. Defendant has appealed, and plaintiff has answered the appeal asking that the judgment be increased to the amount originally prayed for and that the sum of $20 be allowed as an expert fee under the authority of Chatman v. Compania De Navegacao Lloyd Brasileiro,
The policy sued on, which is in evidence, provides for the payment of an endowment, or death benefit of $50, and a sick benefit of $5 per week upon consideration of a weekly premium of $.25, 80 per cent. of the premium, it is stipulated, being "for insurance against disability for sickness or accident" and the remaining 20 per cent. "for endowment insurance."
Plaintiff's counsel stoutly denies the delinquence of his client, and claims that the evidence in the record is to the contrary. But in our opinion it is immaterial because, if we accept the statement in defendant's answer to the effect that plaintiff was always in arrears as true, the result is the same. The policy sued on was issued May 16, 1927, and the illness, for which the indemnity sued for is claimed, occurred on December 9, 1931, so that, according to defendant, for a period of more than four years the plaintiff has been paying premiums for sick benefits insurance without having had coverage at all. Under the circumstances, defendant will be deemed to have waived the provision of the policy relied on, for, as was said in Bush v. Liberty Industrial Life Ins. Co.,
We do not believe that the case is one which would justify the application of Act No.
With regard to the fee of the expert, which is claimed should be allowed under the *34 authority of Chatman v. Compania De Navegacao Lloyd Brasileiro, supra, we do not find that any effort was made below to tax the expert fee, which is presumably that of Dr. Julian Lombard, consequently, for the reasons assigned, the judgment appealed from is affirmed.
Affirmed.