Empire Life Insurance v. Gee

60 So. 90, 178 Ala. 492, 1912 Ala. LEXIS 420

• Court: Supreme Court of Alabama
• Decided: November 21, 1912
• Status: Published

Opinion

de GRAFFENRIED,. J.

Insurance policies, as a general rule, should be liberally construed, and the language used in them should usually be given its ordinary common interpretation. No strained or unusual construction should be given to any of the terms of a policy of insurance, in favor of the insurer or of the insured; but when a clause in such a policy, when read in connection with all the other parts of the policy, is uncertain in its meaning, and is capable of two equally rational constructions, that construction should he placed upon the clause which is most favorable to the insured. These rules are so firmly fixed by our own adjudications, as well as by the decisions of the courts of last resort of our sister states that we deem it unnecessary to cite authorities to sustain them. They are, in truth, axioms of the law relating to the subject of insurance.

1. In the present case William Henry Gee insured his life with appellant for the sum of $2,500 in favor of his sister, Susan B. Gee. The policy was issued on April 22, 1910, and contained, among others, the following provisions:

“Guaranteed Perfect Protection.

“(A) During the premium payment period, after this policy has been in force 60 days, subject to the limitations hereinafter stated, if the principal contract is in force, the insured will be indemnified against death or loss of time as follows:

“(l)The company agrees to pay the beneficiary double the amount insured by the principal contract hereunder, or ($5,000.00) five thousand dollars, in discharge and satisfaction of all claims under this policy, provided the insured dies as the result, directly or independently of all other causes, from bodily injuries effected through external, violent, and accidental means, and provided death occurs within ninety days after receiving injury causing death.

“Total Disability Benefit.

“(2) Upon satisfactory proof to tbe company that the insured has, as the result of disease contracted during the term of this policy, and not hereinafter excepted, entirely and irrevocably lost the sight of both eyes, or permanently'and entirely lost the use of both feet, or of one hand and one foot, and also that the insured has been for one year, and will thereafter and during the insured’s life, by reason thereof, be permanently disabled from engaging in any work or occupation for wages or profit, the company will pay the insured ($1,250.00) twelve hundred fifty dollars. The payment for permanent disability shall end this policy.

“Weekly Sickness Indemnity.

“(3) For a period not less than one week, commencing on the day on which the notice of sickness is mailed to the company, and not more than twenty-six weeks in any one year, during which the insured, directly and indirectly of all other causes, shall be continuously and wholly disabled, being actually confined to bed or room and under the direct daily personal care of a regularly licensed physician, and prevented by bodily disease from transacting any and every kind of business, the company agrees to pay the insured a weekly indemnity of ($12.50) twelve and 50/100 dollars.

“Weekly Accident Benefit.

“(4) For a period of not less than one week, commencing with the day on which notice of accident is mailed to the company and not more than twenty-six weeks in any year, during which the insured, directly and. independently of all other causes, shall be continjaously and wholly disabled, being actually confined to bed or room and under the direct daily personal care of a regularly licensed surgeon, and prevented by bodily injury, effected through external, violent, and accidental means, from transacting any and every kind of business, the company agrees to pay the insured a weekly indemnity of twelve and 50/100 dollars.”'

We have above copied in full (the italics being ours) the four provisions in the policy for which “Guaranteed Perfect Protection” is furnished, for the purpose of emphasizing our statement that, Avhile this “Guaranteed Perfect Protection” is suspended, by the express terms of the policy, for a period of 60 days from the issuance of the policy, there is nothing to indicate that it was the purpose of the insurer or of the insured to declare that the cause of the death or loss of time for which the “Guaranteed Perfect Protection” must be furnished might not originate within the first 60 days next after the issuance of the policy. Death or loss of time, occurring Avithin the first 60 days after the issuance of the policy is expressly exempted from the special provisions grouped under the title “Guaranteed Perfect Protection,” and for the insurance provided for such death or loss of-time the other general provisions of the policy must be looked to and must control. The accidents and disabilities referred to in the above-quoted subdivisions of the policy Avere, of course, those to arise after the insurance Avas perfected; but, applying the rules of construction Avhich Ave announced at the opening of this opinion to the policy in question and to the clauses under discussion, we can see no reason why a death, occurring from such an accident as is described in subdivision (1) within '90 days after such accident and more than 60 days after the issuance of the policy, is not covered by the insurance provided for in said subdivision (1), although the accident may have occurred within the first 60 days after the issuance of the policy. A casual reading of the above-quoted subdivision (2) will emphasize the correctness of this position. ■In that subdivision the thing insured against is loss of time occasioned by a certain physical condition created by disease contracted “during the term of this policy/’ and while, under the express terms of that subdivision, the disease might originate, and the physical condition insured against actually exist, during the first 60 days after the issuance of the policy, the loss of time occasioned thereby does not begin to run, and compensation therefor, under said . subdivision, does not commence, until after the expiration of said first 60 days. In subdivision (1) — the subdivision of special interest in this case — the thing insured against is death caused solely by a certain character of accident occurring within ninety days after the accident and more than sixty days after the issuance of the policy. When the accident} the sole cause of death, was to occur, the clause does not say. It does say when the death — the thing insured against — is to occur; and, if it had been the intention of appellant to insure only against death by accident, the accident as well as the death to occur more than 60 days after the issuance of the policy, it could easily have said so in plain words, and, having-failed to do so, it is not for us to add those words to the policy, nor to change or alter the contract of insurance which the parties themselves have made.— Rorich v. Railway Officials’ & Employees Acc. Ass’n. 119 Fed. 63, 55 C. C. A. 369; General Accident & Life Assur. Cor. v. Meredith, 141 Ky. 92, 132 S. W. 191.

In the present case, according- to the verdict of the jury, William Henry Gee was injured, externally, violently, and accidentally on June 4, 1910, less than 60 days after the issuance of the policy, and died, according to the finding of the jury, solely as the result of that accident on July 9, 1910, more than sixty days after the accident. It is therefore apparent that, if the verdict of the jury was a correct finding under the conflicting evidence in this case, the death of William Henry Gee Avas covered by the letter of the above-quoted subdivision (1), and that the appellee Avas entitled, so far as this phase of the case is concerned, to the double liability provided for in said subdivision.

2. To the complaint the appellant filed many pleas, setting up, in various ways, that William Henry Gee, in negotiating for said insurance policy, made certain false representations as to his past and (then) present physical condition, and that, by reason of such false representations, he induced the appellant to issue the policy. There Avas, hoAvever, filed by the appellant no plea of a breach of Avarranty by the said William Henry Gee, and all that is hereafter said with reference to the pleadings is referable solely to pleas setting up, as a defense to an action brought to recover the amount of an insurance policy, false representations made by the assured to the insurer, in the procurement of the policy.

The specific matters set up by the pleas of false representations on the part of William Henry Gee in the procurement of the policy were, first, that he falsely represented that he was not suffering from a certain disease of the heart, Avhen in fact he Avas so suffering; second, that he falsely represented that he had never suffered from rheumatism, when in fact he had so suffered; third, that he falsely represented that he had never suffered from any disease of the urinary organs, Avhen in fact he had suffered from gonorrhoea. “Where fraudulent representations are pleaded in defense to an action on a policy of insurance, it must be shown that false statements have been made with an intent to deceive, that they related to matters intrinsically material to the risk, and that the insurer relied on them. This rule has not been changed by statute or decision.” —Empire Life Ins. Co. v. Gee, 171 Ala. 435, 55 South. 166.

3. Plea 22, when read in connection with plea 17 (both of which pleas the reporter will set out),-met the requirements of the above rule, and the trial court might well have overruled the appellee’s demurrer to said plea. We are of opinion, however, that the defense set up in that plea could have been made under pleas 35, 37, and 40; and, as the bill -of exceptions discloses that the defense so set up in said plea ivas treated during the progress of the trial as available to appellant, we are of opinion that no injury Avas done appellant by the tidal court in sustaining the demurrer to plea 22. Pleas 35, 37, and 40 (which the reporter will also set out) may have been demurrable, because they failed to particularize the disease with Avhich William Henry Gee is alleged to have been suffering Avhen he procured the.policy (see Empire Life Ins. Co. v. Gee, supra) ; but they were treated by the trial court and the parties to the cause as presenting sufficient answers to the complaint, and under those pleas the special disease of the heart set out in plea 22 might well and could properly have been slioivn, and that, too, with no burden which the pleader had not assumed in said plea 22.

Under the above pleas, and under pleas 36, 41, 42, 43, and 44, upon Avhich, along with others, the case Avas tried, no burden was placed upon appellant greater than Avas placed upon it by the above-quoted rule, and under them every defense as to false representations in the procurement of the policy of insurance, which was sought to be interposed, to the complaint by the pleas to which demurrers were sustained, was available to the appellant. We are therefore of opinion that the action of the trial court in sustaining the appellee’s demurrers to certain of appellant’s pleas was without injury to appellant.

4. The appellant offered no evidence whatever tending to show that Wiliam Henry Gee made any statement of any sort, to appellant or to any of its agents, as to his physical condition at or prior to the time of the issuance of the policy, or that he in any way misrepresented his physical condition to appellant at that time, or at any other time. As the death of William Henry Gee admittedly occurred on July 9, 1910, the appellee was therefore, as to all matters at issue between the parties, entitled to the general affirmative charge, except as to the single issue as to whether death was due solely to an accident provided for in subdivision (1) above quoted, or to disease not caused solely by such accident. The question as to whether the death was or was not due solely to accident, within the meaning of said subdivision (1), was a disputed issue of fact, and was for the determination of the jury. It is therefore evident that the trial court committed no error in refusing to give charges A, 2, 3, 4, 5, 6, 7, S, 13, 14, 15, 17, 41, 42, and 43.

5. The other charges, requested in Avriting by the appellant and refused by the court, Avere either covered by Avritten charges that were given to the jury or are not insisted upon by counsel for appellant in their briefs. The assignments of error’touching the Avritten charges given by the court at the request of appellee are, in effect, abandoned by counsel for appellant in their briefs.

6. The questions propounded to the experts, Furniss and Kenan, and here assigned as error, were admissible. — Stickney v. Dunaway & Lambert, 169 Ala. 464, 53 South. 770; Howard v. State, 108 Ála. 571, 18 South. 813.

7. In the written charges which were given by the court to the jury, the law, so far as the question of liability vel non of appellant to appellee for the amount of the face of the policy ($2,500) was concerned, was more favorable to appellant than the evidence warranted. On the question of double liability — liability for $5,000 under the above-quoted subdivision (1) — the law, as expressed in the written charges given to the jury, Avas plainly and correctly expressed. The only issue for the jury under the evidence as set out in the bill of exceptions Avas Avhether appellant Avas liable to appellee under the provisions of said subdivision (1). That issue was a disputed issue of fact, for the determination of the jury alone, and the jury determined that issue in favor of the appellee. The trial judge refused to set the verdict of the jury aside, and as we are not able to say, after carefully considering all the evidence set out in the bill of exceptions, that, in rendering a verdict for appellee for double the amount of the face of the policy, the jury did the appellant a palpable wrong, we are not disposed to disturb the judgment of the trial court pronounced upon the verdict.

Let the judgment of the court beloAV be affirmed.

Affirmed.

All the Justices concur, except Dowdell, C. J., not sitting.