Opinion
7 Div. 59.
June 5, 1934. Rehearing Denied October 2, 1934. Reversed on Mandate January 22, 1935. Rehearing Denied February 26, 1935. Affirmed after Mandate November 5, 1935. Rehearing Denied January 14, 1936.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Action on a policy of insurance by John T. Box against the Metropolitan Life Insurance Company. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
Certiorari granted by Supreme Court in 232 Ala. 1, 168 So. 216.
Certiorari granted in 232 Ala. 321, 168 So. 217.
Certiorari denied in 232 Ala. 447, 168 So. 220.
Defendant's plea in abatement is as follows:
"Comes the defendant in the above entitled suit and for plea in abatement to the said cause of action says as follows, viz.: That the policy sued on recites as follows, viz.: 'Any employee insured under this plan who shall become wholly and permanently disabled while in our employ before reaching the age of 60, either by accidental injury or disease, and is thereby permanently, continuously and wholly prevented from pursuing any and all gainful occupation, will be regarded as a claimant by the Metropolitan Life Insurance Company. Six months after the receipt of due proof of such disablement, the Insurance Company will begin making payments of the amount of insurance under any one of the following plans at the option of the person insured.'
"That the first proof that the plaintiff sent in to the defendant of his permanent, continuous and whole disability was received by the Company, the said defendant, on the 5th day of May, 1933, that the plaintiff filed this suit against the defendant on the 26th day of May, 1933, when the first installment would not be due until November 5th, 1933, that the said suit was prematurely brought, hence the defendant asks that the same be abated.
"And defendant further avers that it has not denied liability on the said certificate and policy sued on, before the said suit."
Plaintiff filed these replications to said plea:
"1. It is shown in the complaint that before the beginning of this suit defendant denied liability under this claim upon the sole ground of its contention that plaintiff was not permanently and totally disabled as in the complaint alleged and it thereby waived the right to delay suit, if such it had, under the policy provision quoted in said plea.
"2. For that the policy provision quoted in said plea, to-wit: 'Six months after the receipt of due proof of such disablement the Insurance Company will begin making payments of the amount of the insurance under any one of the following plans at the option of the insured,' presents no cause for an abatement of this suit, for to-wit: The object of this provision is to give defendant an opportunity to investigate the claim upon its denial of liability, such as defendant is shown in the complaint to have made, it impliedly admits ample investigating time and the denial operates as an invitation to sue without further delay.
"3. For that said plea in abatement is no answer to the suit because it is shown in the complaint that defendant denied liability on the contention that defendant was not afflicted with total disability and, in making this denial on the one ground, it waived all others, including the right to set up in abatement, the said policy provision * * *.
"4. For that the policy provision set up in said plea in abatement * * * cannot operate as an abatement of this suit and for reason that under its terms, it makes no provision for the delay of suit, applying only to payments and under count one of the complaint judgment could be rendered and payment delayed in accordance with the terms of the policy.
"5. For that the policy provision in said plea * * * cannot operate in abatement of this suit, for, to-wit: Count one claiming installments in the regular order of payment, shows that defendant denied liability on the contention that plaintiff was not permanently and totally disabled, which plaintiff here avers was the sole ground upon which said denial was based, and he avers that in such denial, defendant waived all other grounds of defense, including the policy provision herein quoted.
"6. For that the policy provision in said plea, * * * cannot operate as an abatement of this suit for to-wit: Count one of the complaint shows that defendant denied liability upon the contention that plaintiff was not permanently and totally disabled, which plaintiff here avers was the sole ground upon which said denial was based, and in said count it is alleged that, in this course defendant waived the right to delay payment of any part thereof.
"7. For that the policy provision in said plea * * * cannot operate as an abatement of this suit for to-wit: Count three of the complaint shows teat defendant denied liability upon the contention that plaintiff was not permanently and totally disabled, which plaintiff here avers was the sole ground upon which said denial was based, and in said count it is alleged that, in this course defendant waived the right to delay payment of any part thereof, but, with reduction to the extent of the interest on the several installment payments for the period of time payment of said installments is made in advance of the maturing time provided in said policy, and, as and for a rate making basis, he elects to and does take the option right of five annual installments of $214.00 each.
"8. Plaintiff avers that said plea cannot operate as an abatement of this suit, for to-wit: Before the bringing of this suit it denied liability under this claim upon the sole ground of its contention that plaintiff was not permanently and totally disabled, which operated as a challenge for plaintiff to abandon the claim or sue; that he then brought this suit, incurred expense and trouble in so doing and defendant is therefore estopped from setting up plea in abatement of the suit which its action invited and caused.
Replication 9 is the same as No. 5, but with the following additional averments: "And plaintiff avers further that, if he is mistaken in his claim in said count one that under the terms of the policy, certain of the installment payments are due as therein alleged, then he waives and withdraws that portion of said count alleging that certain installment payments of said policy are due and here makes claim for full amount to be paid through installments in accordance with the terms and provisions of said policy. He further avers that said six months provision, as set up in said plea is specifically applied to the time when payments shall begin, makes no reference to suit. He, therefore, avers that, when defendant denied liability on the sole ground, as herein alleged, it opened the way for and authorized suit for determination of the rights of the parties. He avers that, as shown in said count, defendant denied liability May 24, 1933, having then completed its investigation, and he therefore claims the full amount, with first installment payment to begin six months from that date."
"11. For that the provision of policy in suit and quoted in plea in abatement * * * does not present a valid ground for abatement of this suit, for to-wit: That after plaintiff had sent defendant notice of his disability and claim for compensation under the policy in suit, defendant undertook an investigation on its own account, and after some correspondence with his attorney about said claim defendant did on or about May 15th, 1933, in connection with this claim and in reference thereto, wrote the attorney for plaintiff a letter which carried statement: 'This acknowledges your communication of May 3, and enclosure. We have thoroughly investigated your client's claim, and we are unable to allow indemnity. We are informed by the former employer, that he was employed by them from about April 9, 1922, up until June 13, 1931. During May, 1931, the Anniston Manufacturing Company made a survey of their labor utilization and a new program was put into effect on June 15, 1931. This involved the consolidation and elimination of various jobs in their plant, one of which was held by your client, John Box. That he was not in first class physical condition. Had his job not been eliminated, he would have in all probability, performed his work in the customary manner subsequent to June 15th, 1931.' That on May 18th, 1933, the attorney for plaintiff answered the letter of defendant in words, to-wit: * * * 'I have your letter declining payment of this claim. I note you base it on the absence of disability June 15, 1931. If conceded that Mr. Box left his work because of the elimination of his job, that would not eliminate his claim. Sometimes poverty forces a disabled man to keep at the wheel. We are prepared to show that Mr. Box was on that date permanently and totally disabled, within the meaning of his contract. If your decision is final, an answer to this letter will not be necessary. If I am not further advised by May 25th, I will on that date file suit. * * *'
"That defendant answered this letter of the 18th to-wit * * * 'We have your May 18 letter. May we inform you the medical evidence on hand does not permit the allowance of claim under the terms of the Group Contract, but we are willing and ready to consider any additional medical proof you may care to submit. * * *'
"And plaintiff avers that in this action by defendant it waived the right, if such it had, to delay a suit six months from the date of proof of disability, and justified the suit which was thereupon made.
"12. For replication 12 plaintiff adopts eleven and adds thereto the following:
"And in support of his contention that by its action, as herein shown, defendant waived the right, if such it had, to force a delay on suit for six months, plaintiff avers that in the medical proof it furnished it made out a prima facie case for recovery in that it set up a state of facts such as, if taken alone, would warrant a jury in giving a verdict for plaintiff. Plaintiff avers further that this letter of defendant as last copied, was its final communication in a correspondence in connection with this claim which began in November 1932.
"13. For that the provision of policy in suit and quoted in plea in abatement * * * does not present a valid ground for abatement of this suit, for to-wit: That after plaintiff had sent defendant notice of disability and claim for compensation under the policy in suit, defendant undertook an investigation on its own account, and after some correspondence with his attorney about said claim defendant did on or about May 15th, 1933, in connection with this claim and in reference thereto, write the attorney of plaintiff a letter which carried statement to-wit" — the statement first quoted in replication 11. "And plaintiff avers that in this action by defendant it waived the right, if such it had, to delay a suit six months from the date of proof of disability, and justified the suit which was thereupon made."
Defendant demurred to the foregoing replications upon the following grounds:
"1st. Because the same are immaterial.
"2d. Because the allegations thereof are set up in the complaint.
"3d. Because they make no additional material issue to those already set up by the complaint and the said plea in abatement, as amended.
"4th. Because the said plea in abatement as amended denies that the defendant denied liability on the said certificate and policy sued on, before the bringing of this suit.
"5th. Because from aught that appears therein the defendant has a right to abate this suit upon due proof of the allegations of its said plea in abatement as amended.
"6th. Because the said replications offer the one issue that the defendant denied liability on the policy sued on before the bringing of this suit, and said issue is fully set up between the complaint and the amended plea in abatement, and said replications are immaterial."
Chas. F. Douglass, of Anniston, for appellant.
Where a sustained demurrer is withdrawn by permission and under order of court, the eliminated complaint is reinstated. 49 C.J. 563. Where parties to a cause try it on the theory that omitted pleadings are in and the trial court takes cognizance thereof, the cause will be so treated in the appellate court. 3 C.J. 730, 775, 776; Hammond v. Stevens Motor Co., 21 Ala. App. 154, 106 So. 620; Alverson v. Floyd, 219 Ala. 68, 121 So. 55; Windham v. Clarke, 16 Ala. 659; Jefferson County v. Parker, 211 Ala. 289, 100 So. 338; Hall v. Kirkland, 225 Ala. 158, 142 So. 61; Kansas City, M. B. R. Co. v. Burton, 97 Ala. 240, 12 So. 88; Hardeman v. Williams, 150 Ala. 415, 43 So. 726, 10 L.R.A.(N.S.) 653; Fearn v. Beirne, 129 Ala. 435, 29 So. 558; Atlantic C. L. R. Co. v. Kelly, 16 Ala. App. 360, 77 So. 972; Birmingham Waterworks v. Edwards, 16 Ala. App. 674, 81 So. 194; Planters' Merchants' Ind. P. Co. v. Webb, 156 Ala. 551, 46 So. 977, 16 Ann. Cas. 529; Comer v. Way, 107 Ala. 300, 19 So. 966, 54 Am. St. Rep. 93; Central Iron Coal Co. v. Parsons, 23 Ala. App. 293, 124 So. 399; Thomas v. Barnes, 219 Ala. 652, 123 So. 18; Cooper v. Lake Wood Co., 199 Ala. 633, 75 So. 307. Interposing demurrer waived the right to file plea in abatement. After demurrer and action thereon, the court is without discretion to allow withdrawal and filing of a plea in abatement. Manhattan L. I. Co. v. Parker, 204 Ala. 313, 85 So. 298; Washburn v. Union Central L. I. Co., 143 Ala. 485, 38 So. 1011; Haley v. State, 63 Ala. 89; Cartright v. West, 155 Ala. 619, 47 So. 93; 21 R.C.L. 539; Circuit Court Rule 12. When an insurance company denies liability on one ground, it waives the right to have suit delayed until the time specified in policy, along with all other grounds of defense. Commercial Fire Ins. Co. v. Allen, 80 Ala. 571, 579, 1 So. 202; Preferred Acc. Ins. Co. v. Fielding, 35 Colo. 19, 83 P. 1013, 9 Ann. Cas. 916; Lincoln F. Ins. Co. v. Hurst, 112 Fla. 350, 150 So. 722; Atlantic Horse Ins. Co. v. Nero, 108 Miss. 321, 66 So. 780; California Ins. Co. v. Gracey, 15 Colo. 70, 24 P. 577, 22 Am. St. Rep. 376; Home Ins. Co. v. Scharnagel, 227 Ala. 60, 148 So. 596; London Lancashire Ins. Co. v. McWilliams, 218 Ala. 503, 119 So. 15; Byrd v. Aetna Life Ins. Co., 25 Ala. App. 318, 146 So. 78; Ga. Home Ins. Co. v. Allen, 128 Ala. 451, 30 So. 537; Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909; 14 R.C.L. 1349; 37 C.J. 597; 33 C.J. 25; Houseman v. Home Ins. Co.,1 78 W. Va. 203, 88 S.E. 1048, L. R.A. 1917A, 299; Eminent Household v. Gaunt, 128 Ark. 626, 194 S.W. 700; Reeves v. National Fire Ins. Co., 41 S.D. 341, 170 N.W. 575, 4 A.L.R. 1293, 1296; 1 C.J. 479.
Chas. D. Kline, of Anniston, and Cabaniss Johnston, of Birmingham, for appellee.
The trial court may, in its discretion, allow a general appearance to be withdrawn and a plea in abatement filed. Norton v. Hines, 206 Ala. 134, 89 So. 277; Dozier Lumber Co. v. Smith-Isburg Lumber Co., 145 Ala. 317, 39 So. 714; Karthaus v. Nashville, C. St. L. R. Co., 140 Ala. 433, 37 So. 268. A nonwaiver agreement prevents a waiver of provision of an insurance policy by acts which otherwise would constitute a waiver. Insurance Co. v. Williams, 200 Ala. 681, 77 So. 159; Tedder v. Home Ins. Co., 212 Ala. 624, 103 So. 674. An insurance company, by insisting upon a strict compliance with its contract regarding furnishing of proof of loss, does not thereby waive a provision in the policy that payment shall not be made until a specified time after proof has been furnished. 33 C.J. 25; 4 Cooley's Briefs, 3520.
Appellant sued upon an insurance certificate issued under a group policy. Appellee demurred, and plaintiff amended his complaint. Other demurrers were filed, and on September 7, it was adjudged by the court: "This cause being submitted to the court upon the defendant's demurrers to the complaint, and after being argued by counsel and understood by the court, it is ordered and adjudged by the court that said demurrers be and the same are hereby sustained."
The record is silent as to whether the complaint was thereafter amended or another complaint substituted, and hence it would seem no litigable question remained before the court for decision. Western Union Tel. Co. v. Heathcoat, 149 Ala. 623, 629, 43 So. 117; McMahen v. Western Union Tel. Co., 209 Ala. 319, 96 So. 265.
The parties being present in court by attorneys, in the absence of any showing to the contrary, it must be presumed appellant declined to amend. Dickerson v. Schwabacher, 177 Ala. 371, 378, 58 So. 986. Even when leave to amend is given, this court could not know an amendment was made, or, if made, in what it consisted. Keith v. Cliatt, 59 Ala. 408. In Masterson v. Matthews, 60 Ala. 260, no amendment of the complaint was shown in the record, but the record did affirm that following the sustaining of demurrers to the entire complaint, other demurrers were later overruled to certain counts of the complaint, and hence the Supreme Court could, and did, presume an amendment of the complaint. In the instant case the record shows nothing upon which to predicate such a presumption.
The record, however, shows that four days later, September 11, the demurrers theretofore sustained were withdrawn and appellee permitted to plead in abatement; appellant moved to strike the plea, which, being overruled, he then demurred, and the demurrer being overruled, he then filed thirteen replications, and demurrers were sustained to all, except number ten, of the replications; testimony was taken; a jury verdict had in favor of the appellee, followed by judgment sustaining the plea in abatement, and from that judgment this appeal is prosecuted.
When appellant's complaint was demurred out of court and not amended, this case was at an end, and appellant's remedy was to suffer a nonsuit and appeal, as authorized by Code, § 6431. It is possible that the parties and the trial court treated the previous rulings on the demurrers as nonexistent, and the case still pending; but the record is as above, and shows that following the sustaining of the demurrers to the complaint, nothing remained in the lower court for decision, and hence this appeal must be dismissed.
Appeal dismissed.
After Remandment.
This court has never expressed, nor entertained, the opinion (attributed to it by the Supreme Court, on certiorari) "that when the demurrer to the complaint was sustained the case was at an end and that nothing remained in the court." Our former opinion recognized as authoritative a previous pronouncement of the Supreme Court that when, as here, the record showed a judgment sustaining demurrers to a pleading and was silent as to any amendment or offer to amend, it would be presumed a party "declined to amend, and the court properly rendered final judgment." Dickerson v. Schwabacher, 177 Ala. 371, 58 So. 986, 988.
The Supreme Court, instead of presuming, as formerly, a declination to amend, now declares, "When, without formally setting aside such judgment, it permitted defendant to withdraw the demurrer and to plead in abatement, the effect, concurred in by the parties and the court, was that the judgment on the demurrer was vacated, though not so expressed," and hence we have now not a presumed declination, but a vacation unexpressed of a judgment.
Treating, as we must, the judgment on demurrer as vacated, and consequently the complaint as still before the trial court, it consists of three counts, each of which declares upon a certificate under a group policy promising, in certain contingencies, certain payments, and saying, among other things: "Six months after receipt of due proof of such disablement, the insurance company will begin making payments." Suit was filed within the six months' period. The first count alleged defendant refused adjustment "denying liability on said certificate and policy," and, also, "plaintiff avers that defendant has waived and lost the privilege of delaying the beginning of payments for a period of six months from the date of the receipt of proof of disability" through the denial of liability. The second and third counts also relied upon a denial of liability.
Defendant filed a plea in abatement setting out the above-referred to clause of the policy, averring suit was premature, and by amendment added: "It has not denied liability on said certificate and policy sued on before the said suit." The plaintiff's motion to strike was overruled. The allowance of the plea after demurrer withdrawn and judgment thereon vacated was within the trial court's discretion. Ex parte Haisten, 227 Ala. 183, 149 So. 213. Nor was the plea due to be stricken for any statutory cause. Code 1923, § 9458. The plaintiff then demurred to the plea. Years ago our Supreme Court declared: "There is no necessity to plead in abatement, that the action was commenced before the cause of action arose, such a defence may be made under the general issue. This is the doctrine as laid down in all of the text books, and books of pleading." Rainey v. Long, 9 Ala. 754. But a more recent opinion, Dantzler v. Scheuer, 203 Ala. 89, 82 So. 103, indicates that the prematurity may be pleaded in abatement.
It is apparent that the basic and fundamental question involved in this appeal is, May an insurer, after denying liability, none the less insist upon a delay in being sued? May it deny any obligation to ever pay and at the same time avail itself of a stipulated delay for beginning to pay that which it now denies all obligation to ever pay? The authorities declare that an unequivocal refusal operates as a waiver and enables the insured to sue immediately, notwithstanding the policy may contain a clause similar to that here. 26 Corpus Juris 471, § 667; 33 Corpus Juris 75, § 782; 37 Corpus Juris 597; 2 Couch Insurance, § 454.
The view obtains here that appellant's demurrers to the plea should have been sustained. This renders unnecessary any consideration of the replications to the plea.
Reversed and remanded.
On Rehearing.
On certiorari to the Supreme Court, that court declared that the appellee's plea in abatement was not subject to demurrer on the grounds assigned.
The record informs us that the appellant filed replications 1 to 13, inclusive, to the plea in abatement as amended. (The plea in abatement as amended, as it appears on pages 6 to 10 of the transcript, and the replications will be set out in the report of this case.)
Each replication was demurred to on six grounds, which the reporter will set out.
The demurrer to replication 10 was overruled, and the demurrer to all the other replications was sustained.
The opinion here prevails that the court below did not err in sustaining the demurrer to replications 1 to 9, and 11 to 13, inclusive.
The contract of insurance obligated the insurance company to make the payments called for in the contract to an employee who became wholly and permanently disabled before reaching the age of 60; the payments to begin six months after the receipt of due proof of such disablement. Under the express language of the contract, the first payment: was not due until the expiration of six months after the receipt of due proof of such disablement.
A contract of the kind sued on is to be distinguished from a contract where the amount called for in the contract is due immediately upon receipt of proof. In the contract sued on the obligation is not due until the expiration of six months after the receipt of proof. The denial of liability by the insurer does not have the effect of maturing the obligation by advancing the date of payment. While a denial of liability as a waiver of the provision in the policy calling for submission of due proof of such disablement, such waiver would not accelerate the due date of the first payment provided for in the policy. The waiver would simply relieve the insured of the obligation to file the proof called for by the contract, and the first payment would be due six months after the waiver occurred. In the first instance, without a waiver, the first payment would be due six months after receipt of proof of the disablement. If the insurer sees fit to waive the provision requiring the submission of due proof of the disability, that without more would not constitute a waiver of the provision that the first payment would be due and payable six months after the submission of such proof.
Where proof of disability has been waived, the situation of the parties is, in legal effect, the same as if it had been furnished. Had the proof been furnished, the first payment would have been due six months after it was furnished. If it was waived, the first payment would be due six months from the date of the waiver.
We think this is made clear by the case of Hundley v. Metropolitan Life Insurance Company, 205 N.C. 780, 172 S.E. 361, and on that authority we hold that no reversible error was committed in the ruling on the demurrer to the replications.
The record discloses that the case was tried upon the complaint, the plea in abatement, as amended, and replication 10. At the conclusion of the evidence, the court, at the request of the appellee, gave the following charge in writing: "The court charges the jury that if you believe the evidence, you will find issues in favor of the defendant," and refused the affirmative instructions with hypothesis requested in writing by appellant.
Appellant's replication 10 reads as follows: "For that before the bringing of this suit, to wit, on or about May 24, 1933, defendant denied liability upon the claim involved in this suit upon the sole ground of its contention that plaintiff was not permanently and totally disabled; that it therefore waived formal proof of claim, authorized immediate suit, and he therefore avers that said plea cannot operate as an abatement of this suit."
In replication 10 the plaintiff assumed the burden of furnishing evidence to sustain his claim that the defendant denied liability upon the claim involved on or about May 24, 1933, upon the sole ground that plaintiff was not permanently and totally disabled. In order to carry the burden imposed upon him by replication 10, the bill of exceptions informs us that the plaintiff offered in evidence Exhibits A to Q, inclusive. Exhibits A and B consisting of certificate of insurance and group policy, were admitted in evidence. The defendant's objection to the admission in evidence of exhibits C to Q, inclusive, was sustained and the ruling on each is here assigned for error.
The certificate of insurance was issued to plaintiff while he was employed by the Anniston Manufacturing Company. It appears that he worked for that concern until his job was abolished in June, 1931, when the insurance on appellant terminated. The first claim he made that he was totally and permanently disabled was made in December, 1932.
A reference to the bill of exceptions discloses that the appellant did not call a single witness in his behalf. He offered only the documentary evidence referred to. The two exhibits that were admitted in evidence had no tendency to prove the essential allegation in replication 10, to the effect that the defendant denied liability upon the claim involved in this suit upon the sole ground of its contention that plaintiff was not permanently and totally disabled. The question then occurs: Was any error committed in rejecting exhibits C to Q, inclusive?
As we read those exhibits, they do not show, or tend to show, that appellee denied liability on the sole ground that the plaintiff was not totally and permanently disabled, as alleged in appellant's replication 10. Had these exhibits, therefore, been admitted in evidence, appellant would still lack a scintilla of evidence to support this essential averment in replication 10.
In the view we now take of the case, the admission or rejection of these exhibits would not have altered the appellant's position. Had they been admitted in evidence, the appellant would have found himself in identically the same situation that the record discloses he is now; that is to say, he did not furnish a scintilla of evidence supporting the material allegations of replication 10, to the effect that the defendant denied liability upon the claim involved in this suit, upon the sole ground of its contention that plaintiff was not permanently and totally disabled.
For these reasons the court is of the opinion that no error prejudicial to the appellant is shown by the record, and for that reason the judgment appealed from is affirmed.
The former opinion in this case, filed on November 5, 1935, is hereby withdrawn, and the foregoing opinion is substituted.
Application overruled.
Affirmed.