DocketNumber： 15294
Citation Numbers： 15 S.E.2d 743, 197 S.C. 498
Judges： Bonham, Carter, Fist-Iburne, Messrs, Baker, Fisi-Iburne, Stukes
Filed Date： 7/15/1941
Status： Precedential
Modified Date： 10/19/2024
I concur in the result of the opinion of the Chief Justice, though I reach my conclusion by a somewhat different course of reasoning.
The proof of disability required by the policy as a condition of liability of the appellant insurance company, as made by the respondent in this case, did not establish respondent's right to disability benefits, but it nevertheless constituted "due proof" of disability as required by the policy, and having been made at a time when the respondent had a right to claim disability benefits if he was then disabled within the provisions of his policy, it furnished a foundation upon which, after rejection by the appellant, the insured could maintain a suit. If the disposition of the case involved only the fact of the making of a proof of claim and its rejection by the appellant, I would concur in the view expressed in the opinion of Mr. Justice Stukes that limitations did not run against respondent's claim as a whole, but merely applied to each annual installment as it accrued. But it appears to me that there are other factors in the case which preclude a recovery by the respondent.
It will hardly be questioned that if, after the rejection of the proof of claim by appellant, the two parties had entered into a formal agreement that the proof of claim should *Page 512 be disregarded, and that the same should be removed from the files of the appellant, any claim made by the respondent in 1940, by suit or otherwise, would be foreclosed by the fact that the claim had not arisen, and proof of the same made, before the respondent became sixty years old, as provided by the policy limitations. There is no such formal agreement in this case, but it appears to me that the evidence nevertheless shows the existence of an agreement, both legally and morally, of equal import and of similar consequences.
When the appellant rejected the proof of claim as not establishing total and permanent disability within the provisions of the policy, an issue arose between the respondent and appellant. While in a sense this issue involved a mixed question of law and fact, it must be recognized that the factual elements were the predominant considerations, and that the respondent knew as a matter of fact whether in the language of the policy, he had "become wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit."
As far as the appellant was concerned, the issue was met from its standpoint by its rejection of the disability claim. As far as the insured was concerned, he having, of course, intimate personal knowledge of the actual facts respecting the nature and extent of the injury and diseases from which he suffered at the time and the consequences thereof, he definitely and affirmatively accepted the conclusion of the appellant. That is to say, he made no protest against the specific declaration in the appellant's letter rejecting his claim that he was totally and permanently disabled within the provisions of the policy, and that he would be prevented for life from pursuing some gainful occupation.
Respondent's acquiescence in the factual assertion of the appellant was not only evidenced by his failure to make any complaint about the same, but was further evidenced by the *Page 513 respondent, with full knowledge of all of the facts, by his continuation of the payment of premiums for several years thereafter. In my opinion, without resorting to the technical doctrine of estoppel, this concurrence of opinion on the part of the respondent and the appellant was binding alike on each, and constituted in effect a decision on the part of both parties that their relationship and rights and liabilities under the policy were not to be regarded as affected by the rejected proof of claim; and in this light the appellant was fully justified in dismissing the matter and making no further investigation for its protection during the intervening eight years before the claim was renewed and a suit brought.
A consideration that was and is vital to the appellant and that on its part is a matter of strict contract right, is the provision of the policy that at any time, but not oftener than once a year, the appellant could demand further proof of continued disability as a condition of continuing the payments. Through the silent acquiescence of and payment of premiums by the respondent for a period of years, the appellant was lulled into inaction, whereas as a matter of common knowledge the appellant would have made inquiries and investigations from time to time had it been advised or given cause to believe that the respondent considered that he was disabled within the meaning of the policy, and that he had brought himself within its terms by filing the rejected proof of claim.
As a practical matter the appellant was injuriously affected in other respects by the considerations above stated, as the testimony adduced in this case clearly discloses. The theory upon which the Circuit Judge proceeded required the finding by the jury that for six years prior to the institution of the suit the respondent was disabled within the language of the policy and also that he had been disabled for two years prior to that, so as to enable the respondent to rest his case on the proof filed by him in 1932, before he became sixty years old. None of the medical testimony dealt with any such continuous and extended period of disability. And the other *Page 514
evidence offered in support of respondent's claim at no point supports a factual basis for the assertion that the respondent was in fact continuously, totally and permanently disabled; whatever the applicable legal principle may be, the fact is that in this particular case the issue of law and fact as to the extent of respondent's disability is extremely close, and that the appellant did not have the benefit of its contractual right to re-examine the situation from year to year, and to demand proof from year to year of the continuous disability, by reason of the conduct of the respondent. This is not a case like that of the New York Life Insurance Companyv. Talley, 8 Cir.,
In the situation here presented, however, the burden was on the insured and he and his insurer were in complete accord, as far as the insurer could ascertain and as the record itself discloses, that no rights to disability benefits under the policy had arisen.
In the light of the foregoing it is my opinion that the respondent failed to comply with the requirement of his policy that he file proof of disability before the anniversary of the *Page 515 policy on which the insured's age at his nearest birthday is sixty years, and that he is not entitled to recover in this action.
It is to be borne in mind that under the provisions of the policy involved in the present case, the disability payments begin on the anniversary of the policy following the receipt of proof; this can have no other meaning than that the payments shall begin when the proof has been received by the appellant, and accepted by it as sufficient, or adjudicated to be sufficient, though of course in the case of an adjudication, the liability dates back to the time of filing of the proof. Here, for all practical purposes, there was an agreement between the parties that no proof had been filed within the required time, and there is no suggestion in the record that the respondent was in any respect misled, or that he acted under pressure or inducement of any kind. His present position is that in 1940, he reached the conclusion that he was in error, on a matter over which he had full control and of which he had full knowledge, in a clearly implied agreement he made with the appellant in 1932.
In thus limiting the statement of my views I am not to be understood as concluding that the respondent has made out a case of total and permanent disability within the language of his policy. In the management of his little farm he is still able to do practically everything that is necessary to operate it except the manual labor, and the record is not clear that he has ever done very much of this. But in view of the conclusion that the suit is not maintainable on other grounds, it is not necessary to go into this debatable issue.
Irrespective of the final holding of the Court on this appeal, I desire specifically to go on record as being of the opinion that under the circumstances of this case where the respondent continued to voluntarily pay the annual premiums on the policy of insurance with full knowledge of all of the facts as to the condition of his health, and disability, he is precluded from recovering these premiums so paid.
MR. JUSTICE CARTER concurs. *Page 516