Penn Mutual Life Insurance v. Milton

Bell, J. (After stating the foregoing facts.) Construing the plaintiff’s allegations most strongly against him, as must be done on demurrer, it appears that the alleged disability terminated on April 24, 1923, and thus lasted for a period of only sixteen months. The defendant has urged that the petition, therefore, shows upon its face that the plaintiff was never “permanently” disabled within the meaning of the policy. Upon this point we certified certain questions to the Supreme Court, and in the answers have been instructed as follows: “Where provisions of a policy of life-insurance provide that if the insured, after one year’s premium shall have been paid and before default in the payment of any subsequent premium, shall furnish to the company due proof that, prior to the maturity of the policy and before attaining the age of sixty, he has become wholly disabled by bodily injury or disease, so that he is and thereby will be permanently and continuously unable to engage in any occupation whatever for remuneration or profit, and that such disability has existed continuously for not less than sixty days prior to the furnishing of proof, the company will waive the payment of the premiums which may thereafter become due under the policy during the continuance of such total disability, and will pay to the insured each month fifty dollars, the first monthly payment to be made six months after the receipt of due proof of the said total disability, during the continuance of such total disability of the insured and prior to the maturity of the policy, a disability which has lasted for sixteen months and from which the insured has recovered is a permanent disability within the meaning of the provisions of the policy.” 160 Ga. (127 S. E. 140). We are nevertheless of the opinion that the petition was subject to certain grounds of the demurrer. It is urged in ground 5 that “the petition fails to show by the facts alleged how long the disability of the plaintiff continued after he had furnished due [639] proof of such disability, if any existed, and therefore fails to establish his right to recover any certain sum for such disability.” We agree with this contention. In the absence of a waiver of proof of disability as required by the terms of the agreement, the insurer would not be liable for the monthly payments until the expiration of six months after the submission of such proof, and the petition does not definitely show when the proof was submitted, nor what period, if any, elapsed subsequently to the making thereof. Unless proof of the disability was given to the company more than six months before the disability terminated, or was waived, the insurer’s liability for the monthly payments never attached. Thus,'the petition was defective in the respect indicated in the demurrer, in that it failed to show “by facts” for what certain sum, if for anything, the company had become liable. National Life Insurance Co. v. Jordan, 21 Ga. App. 647 (1) (94 S. E. 862), and citations; Woodall v. Fidelity & Casualty Co., 131 Ga. 517 (62 S. E. 808). We think, furthermore, that the provisions of the policy in this case required that the proof should be furnished during the existence of the disability, because it is stipulated that the proofs shall show that the plaintiff has become- disabled “so that he is, and thereby will be, permanently and continuously disabled,” etc. The plaintiff alleged in general language that he “filed proof of his total and permanent disability as required by the terms of said policy;” and this would imply that the proof embodied all the facts necessary to be stated therein under the stipulations of the agreement. But the defendant was entitled, upon special demurrer calling for the information, to have the plaintiff allege when the proof was made, and to have a complete statement of the substantial facts upon which the plaintiff declared that the proof was made in compliance with the policy. The substance of the proof of disability ought to have been shown, instead of the mere general statements of the petition that it had been made in term* of the policy, in order that the court might determine whether the plaintiff really had a cause of action. The plaintiff could not recover if he waited until his disability had ceased before furnishing the proof, and, as we have seen above, the insurer would not be liable for anything unless the proof was submitted more than six months before the discontinuance of the disability. In so far as grounds 10 and 11 of the demurrer, which were [640] special in. nature, called for the date of the furnishing of the proof of disability and the material facts contained therein, they should have been sustained. The headnote in Woodall v. Fidelity & Casualty Co., supra, is as follows: “Where a health-indemnity policy provided for liability of the insurance company for a specified amount per week during the disability of the assured resulting from certain diseases for a period not exceeding 26 weeks, and that the medical adviser of the company had the right to examine the assured during such disability, and further provided that immediate notice should be given the company of any disease causing such disability, and of the full name and address of the assured, held: Where the disability continues for the full period of 26 weeks, and there is a failure to give such notice during such period, and no excuse for such failure is given, there can be no recovery on account of such disability.” It was stated in the opinion in that case that the “requirement in the policy that immediate written notice must bo given the company at New York City, of any disease or illness for which a claim is to be made, is of the essence of the contract and must be complied with before any recovery can be had.” A failure to furnish proof of disability during its continuance might render it impossible for the company to make a fair investigation of the circumstances of the claim, and the condition that the proof should show that the insured was disabled at the 'time goes to the essential requisites of the proof as stipulated for, and does not relate merely and solely to the time of its submission. Conditions or provisions of this character are “usually given a more liberal construction in favor of the company than the requirement for notice and proof under an ordinary fire.policy, which can only become effective after the company’s liability has already been fixed.” 4 Cooley’s Ins. Briefs, 3570, quoted approvingly in the Woodall case, supra. See also Graham v. Niagara Fire Ins. Co., 106 Ga. 840 (1) (32 S. E. 579); Finleyson v. Liverpool &c. Ins. Co., 16 Ga. App. 51 (84 S. E. 311); Great Eastern Casualty Co. v. Reed, 17 Ga. App. 613 (2) (87 S. E. 904); Ermentrout v. Girard Fire Ins. Co., 63 Minn. 305 (65 N. W. 635, 30 L. R. A. 346, 56 Am. St. Rep. 481); 29 C. J. 282, § 8. Nothing said herein is in conflict with anything held in the first division of the decision of the Supreme Court in Southern Fire [641] Insurance Co. v. Knight, 111 Ga. 622 (36 S. E. 831, 52 L. R. A. 70, 78 Am. St. Rep. 216). The petition was also subject to the objection made in the ninth ground of the demurrer, in that it is not shown from what bodily disease the plaintiff was suffering, nor wherein nor how he had become wholly disabled so as to entitle him to the benefits claimed, the only allegations with respect to the existence of the disability being contained 'in paragraphs 4 (d) and 7 of the petition, and made as mere conclusions of the pleader. Parten v. Jefferson Standard Life Ins. Co., 30 Ga. App. 245 (2) (117 S. E. 772). Nothing we have said is altered by the fact that the defendant, on October 30, 1933, in a letter to the plaintiff’s attorneys, stated that it had declined to pay the claim because it appeared therefrom, as the defendant believed, that on account of the plaintiff’s having recovered, he had not been totally and permanently disabled within the meaning of the policy. It is well settled that where a proof of loss is submitted under 'an insurance policy, if the insurer does not return it within a reasonable time, pointing out any deficiencies therein, so that the insured may have an opportunity of supplying the necessary corrections, the insurer will be held to have accepted the proof as sufficient within the terms of the policy, and that an objection to the proof upon one or more grounds only may amount to a waiver of other defects therein (see Alston v. Phenix Ins. Co., 100 Ga. 287 (2), 27 S. E. 981; Phenix Ins. Co. v. Hart, 112 Ga. 765 (5), 38 S. E. 67; Great American Fire Asso. v. Jenkins, 11 Ga. App. 784 (1), 76 S. E. 159; Stanley v. Sterling Mutual Life Ins. Co., 12 Ga. App. 475 (2), 77 S. E. 664; Bailey v. First National Fire Ins. Co., 18 Ga. App. 213 (3), 89 S. E. 80; Williams v. Atlas Assurance Co., 22 Ga. App. 661 (1, 2), 97 S. E. 91; Ætna Life Ins. Co. v. Anderson, 75 N. H. 375, 74 Atl. 1051, 28 L. R. A. (N. S.) 730, 735; 26 C. J. 401, § 514); and also that an absolute refusal to pay will ordinarily operate as a waiver of a performance by the insured of the preliminary act of furnishing the proof (Civil Code of 1910, § 2490; Moore v. Dixie Fire Ins. Co., 19 Ga. App. 800, 92 S. E. 302; 3 Cooley’s Ins. Briefs, 2681); yet these principles have no application if a forfeiture has already taken place and the contract has become a “dead letter.” In Harp v. Fireman’s Fund Ins. Co., 130 Ga. 726 (4) (61 S. E. 704, 14 Ann. Cas. 299), the Supreme Court held: [642] “An absolute refusal by the insurer to pay, made before the expiration of the reasonable time within which the insured must furnish such proofs, will be a waiver thereof; but such refusal made after such reasonable time has expired will not be a waiver of such proofs.” See also Insurance Co. of North America v. DeLoach, 3 Ga. App. 807, 812 (61 S. E. 406); Volunteer State Life Ins. Go. v. McGinnis, 29 Ga. App. 370 (115 S. E. 287), and citations; Finleyson v. Liverpool &c. Ins. Co., supra. Although in the instant case there is no question as to reasonable time, as was true in the Harp case, the principle there enunciated is applicable. According to the allegations of the petition, the plaintiff’s disability had ended several months before the writing of this letter by the insurer. As we have seen above, if he had not submitted proof of disability, according to the requirements of the policy, during the existence of his disability and six months prior to its termination, nothing amounting to a waiver or estoppel having occurred in the meantime, his claim for the particular disability had already been lost, and, having expired, was not revived by anything contained in the defendant’s letter. Under the doctrine of the Harp case, no other conclusion is possible with respect to the effect of this letter, although in some other jurisdictions it might amount to a waiver. See cases cited in 1 Corpus Juris 480, § 203. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.