Opinion
No. 32569.
February 8, 1937. Suggestion of Error Overruled, March 8, 1937.
1. INSURANCE.
Employee who contracted tuberculosis prior to effective date of disability provisions of group policy, to recover benefits for total and permanent disability, had burden to prove not only that she was totally and permanently disabled after effective date but also that she did not become so disabled before such date.
2. INSURANCE.
Employee who contracted tuberculosis prior to effective date of disability provisions of group policy failed to meet burden of showing right to payments for total and permanent disability, where record was silent as to her condition during period from about a month prior to effective date and eight days thereafter, when, according to physician's testimony, she was totally and permanently disabled, and where physician testified that she had been so disabled for a much longer period than those eight days.
APPEAL from the circuit court of Alcorn county. HON. THOS. H. JOHNSTON, Judge.
Watkins Eager, of Jackson, and W.C. Sweat, of Corinth, for appellant.
The court erred in rendering judgment for appellee. The declaration of appellee fails to state a cause of action in that she does not allege that the disease which caused the total and permanent disability was contracted after August 22, 1934.
It is the contention of the appellant that appellee's declaration must show a compliance with all the conditions of the policy, and unless these conditions are alleged to have been fulfilled, then appellee fails to make a good cause of action under the policy sued upon.
Penn Mutual Life Ins. Co. v. Keeton, 95 Miss. 708, 49 So. 736; 23 Cyc. 740, notes 83, 84; Standard Life Ins. Co. of the South v. Coleman, 170 So. 297; Cooperative Oil Co. v. Greenwood Agency Co., 148 Miss. 536, 114 So. 397; Mullican v. Meridian Light Ry. Co., 121 Miss. 806, 83 So. 816; State v. Junkin, 159 So. 107.
Parties to an insurance contract have the right to assume or not assume certain risks, and the Supreme Court must enforce the contracts as they are written, unless they are contrary to the law of the state or to some public policy.
New Amsterdam Casualty Co. v. Perryman, 162 Miss. 864, 140 So. 342; Fidelity Deposit Co. v. Merchants' Marine Bank of Pascagoula, 151 So. 373, 154 So. 260; Berry v. Lamar Life Ins. Co., 145 So. 887, 165 Miss. 405; Lavender v. Volunteer State Life Ins. Co., 157 So. 101; Protective Life Ins. Co. v. Hale, 161 So. 248; Yarbrough v. Atlantic Life Ins. Co., 84 F.2d 319; Imperial Fire Ins. Co. v. County of Coos, 151 U.S. 153, 38 L.Ed. 231.
The burden of proof is upon the appellee to show that the disease of pulmonary tuberculosis, from which the appellee claims to be suffering, was contracted after August 22, 1934, which under the policy was the first day that appellee became eligible for total and permanent disability benefits.
Life Casualty Ins. Co. of Tenn. v. Jones, 73 So. 566; Love v. New York Life Ins. Co., 64 F.2d 829; Burkett v. New York Life Ins. Co., 56 F.2d 105; Jno. Hancock Mutual Life Ins. Co. v. Hicks, 183 N.E. 93; Apter v. Home Life Ins. Co. of New York, 194 N.E. 846.
G.C. Moreland, of Corinth, for appellee.
The policy does not provide that the disease from which total and permanent disability results must be contracted after the expiration of one year from the date of the policy but on the contrary, the policy provides that if the insured becomes totally and permanently disabled after the expiration of the year, then the company will pay the benefit provided in the policy.
The cause which finally resulted in total and permanent disability may have existed for a long time, yet until the insured actually became totally and permanently disabled, the company was not liable under the terms of the policy. In a suit on an accident and disability policy by the beginning of the disability of the plaintiff means the time when the disease first became manifest or active, and does not mean the time when the medical cause of the disease may have originated or begun.
Provident Life Acc. Ins. Co. v. Jemison, 153 Miss. 53.
If a declaration does not state a cause of action, the defendant may demur and if his demurrer is overruled, he may then object to testimony tending to prove facts not alleged in the declaration and, if his objections are overruled, he may then request a peremptory instruction; if his peremptory instruction is overruled and judgment is rendered against him, he may then appeal to the Supreme Court where the court will reverse and remand with leave to amend.
Newell Contracting Co. v. Flynt, 161 So. 743.
However, we insist that the declaration is not defective, and that it states a good cause of action. We further insist that the allegations of the declaration are fully sustained by the proof and that under the evidence in this case, the learned circuit judge could have rendered no judgment other than a judgment for appellee.
Counsel for appellant are in error when they say that the contract of insurance in the case at bar specifically limits the liability of the insurer, that is, that the insured becomes eligible for total and permanent disability for injury received for diseases contracted one year after the effective date of the policy, but on the contrary, the policy provides specifically that the insured becomes eligible for total and permanent disability benefits in the event she becomes totally and permanently disabled after the expiration of one year from the effective date of her policy, cases cited by appellant are not in point with the case at bar.
The court found as a fact that Mrs. Henderson was afflicted with pulmonary tuberculosis, and that she was totally and permanently disabled.
Equitable Life Assurance Society v. Serio, 124 So. 485.
The finding of the court on controverted facts is analogous to the verdict of a jury and his finding of fact will not be disturbed on appeal unless manifestly wrong or against the overwhelming weight of the evidence.
Davis v. Richards, 45 Miss. 499; Apple v. Ganong, 47 Miss. 189; Wilson v. Bauchamp, 50 Miss. 44; Lott v. Hull, 104 Miss. 308; Grace v. Pierce, 127 Miss. 83; Scott v. Perry, 140 Miss. 452; Babcock v. Holloway, 140 Miss. 120; Austin v. Page, 169 So. 671.
Argued orally by W.H. Watkins, Jr., for appellant.
Appellant, Equitable Life Assurance Society, issued a group insurance policy covering the employees of the Weaver Pants Corporation; and, on August 22, 1933, in pursuance of the terms of the master policy, it issued an individual certificate of insurance covering the life of the appellee, Mrs. Ida Henderson, an employee of the Weaver Pants Corporation, which provided that disability benefits should be paid in the event she should, after one year from the effective date of the policy and before attaining the age of sixty years, become totally and permanently disabled by bodily injury or disease so as to be thereby continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value.
In March, 1935, the appellee filed this suit, seeking to recover benefits provided in this policy for total and permanent disability alleged to have occurred on or about September 1, 1934, as a result of tuberculosis. In the circuit court the cause was heard before the judge without a jury, and, upon the proof offered to establish disability, the court held that the appellee became totally and permanently disabled on the 30th of August, 1934; or, in other words, that she did not become so disabled until after August 22, 1934, the effective date of the disability provisions of the policy.
As bearing upon her disability and the time when it became total and permanent, the appellee testified that she suffered an attack of pneumonia in January, 1934, and did not work for a period of about five weeks, but that, with this exception, she worked regularly at the factory of the Weavers Pants Corporation until July 27, 1934, when the entire section or crew with which she was working was laid off until the 1st of October, 1934.
Appellee also offered her physician as a witness, who testified that when he examined appellee for the first time, on August 30 and 31, 1934, she had about two degrees of fever and was suffering from pulmonary tuberculosis, and was, in his opinion, totally disabled for the performance of any labor. He further testified that from the condition in which he found the appellee and the history of the case as furnished by her it was his opinion that she had been totally disabled for several months.
In the original brief of counsel for appellant, it is stated that under the insurance certificate issued to appellant "she was insured against death and total and permanent disability caused from injury or disease contracted one year after the issuance of the certificate;" and the argument and citation of authorities seem to be addressed throughout to the establishment of the proposition that there was no liability, for the reason that the disease resulting in disability was contracted before August 22, 1934, the effective date of the disability provisions of the policy.
The disability provisions of the policy here involved do not limit liability to disability resulting from disease "contracted" after the effective date thereof, but benefits are therein provided for total and permanent disability occurring after the effective date thereof. The decisive question here is whether or not the appellee became totally and permanently disabled after August 22, 1934, and not whether the disease which finally resulted in such disability originated or was contracted after that date. That the appellee contracted tuberculosis prior to August 22, 1934, is not open to question upon the proof in this record.
The burden was upon the appellee to prove, not only that she was totally and permanently disabled after August 22, 1934, but also that she did not become so disabled before that date. While the appellee testified that she was able to work until July 27, 1934, the record is wholly silent as to her condition from that date until August 30, 1934, when she first discovered that she was suffering from tuberculosis. There is nothing in the testimony of appellee's physician from which the inference can be drawn that there was any material change in appellee's physical condition during the eight days intervening between the effective date of the disability provisions of the policy and that discovery of the nature and extent of the disease on August 30, 1934 — in fact, this physician testified that, in his opinion, she had been totally disabled for a much longer period of time. There was no other evidence bearing upon the point, and we are of the opinion that appellee failed to meet the burden of showing that she was entitled to payments under the stipulations of the policy, and therefore the judgment of the court below will be reversed and judgment will be entered here for the appellant.
Reversed and judgment for appellant.