Opinion
No. 40158.
May 7, 1956.
1. Insurance — sick benefit policy — exclusion — disease covered only if cause originated after policy in force six months — inception of disease or disability construed.
In action against insurer on accident and sick benefit policy issued September 9, 1954 to recover benefits for gall bladder operation on March 14, 1955, where insurer relied on provision of policy that gall bladder disease shall be covered only if cause originated after policy has been in force for six months and where first manifestation of disease was an acute attack on March 13, 1955, although testimony of doctor indicated that the basic cause, from a medical standpoint, may have originated two or three months prior to operation, insured was entitled to a directed verdict and granting of erroneous instruction was harmless error.
2. Insurance — sick benefit policy — inception of disease or disability — rule.
Under policy provisions precluding recovery for disease or disability originating before a prescribed time, the cause of the disease originates and has its inception, within meaning of such provisions, when the disease first becomes manifest or active, although the medical cause of the disease might possibly have existed prior to the time of its manifestation.
Headnotes as approved by Roberds, P.J.
APPEAL from the Circuit Court of Neshoba County; W.E. McINTYRE, Judge.
Kenneth I. Franks, Philadelphia, for appellant.
I. The Court erred in not pre-emptorily instructing the jury to render a verdict for the defendant at the close of plaintiff's testimony.
II. When a policy provides for indemnity for illness contracted after the policy has been in force a specified time, there can be no recovery for a chronic disease which existed before the expiration of such specified time. 29 Am. Jur., Sec. 928 p. 705.
III. The verdict of the jury was against the great weight of the evidence.
IV. There is no evidence in the record that supports the verdict of the jury in finding for the plaintiff under the terms of the contract of insurance.
V. The Court erred in granting jury instruction No. 2 as requested by the plaintiff-appellee because it did not take into account the limitations and exclusions section of the contract of insurance.
Clayton Lewis, Philadelphia, for appellee.
I. The proof shows that the contract of insurance had been in force for more than six (6) months, when the appellee, Mrs. Ruby May, was stricken with an acute attack of calculous cholecystitis or gall bladder disease, that this was the first attack and that said attack occurred on the 13th day of March, 1955, and that the proof of loss was filed by Dr. C.D. Brannon, and that said attack was acute.
II. It is a well-established rule of construction that whenever there is any ambiguity in a policy of insurance, it is construed strictly against the insurance company which drafted the contract. Mississippi Ben. Assn. v. Majure, 201 Miss. 183, 29 So.2d 110; Great American Ins. Co. v. Bass, 208 Miss. 436, 44 So.2d 532.
III. Appellant questions Instruction No. 2 given by the Court for the plaintiff, but Instruction No. 1 given by the Court for the defendant covers all arguments made by the appellant as to the said instruction.
IV. Under the facts and evidence of this case, the issues were for the determination of the jury. Fidelity Mut. Life Ins. Co. v. 93 Miss. pp. 18, 422, 46 So. 817, 48 So. 1017.
(Hn 1) On September 9, 1954, Union Bankers Insurance Company, appellant, issued to Mrs. Ruby B. May, appellee, an accident and sick benefit insurance policy. On March 14, 1955, Mrs. May underwent a gall bladder operation. On refusal of appellant to pay sick benefits she brought this action. She recovered a verdict for $256.20, and the Insurance Company appeals. Appellant urges, among other things, that the case must be reversed and remanded because of the granting to complainant-appellee of an erroneous instruction. The contention is well taken unless, under the proof, the insured was entitled to a peremptory instruction. We think she was entitled to a directed verdict and that the granting of the erroneous instruction was harmless. (Hn 2) The Insurance Company invokes and relies upon this provision of the policy: "Any loss or disability resulting wholly or partly in or from * * * gall bladder disease shall be covered only if the cause thereof originates after this policy has been in continuous force for the preceding six months". The undisputed proof is that Mrs. May had an acute attack of gall bladder trouble. She testified that the first manifestation, or intimation, that she had of this trouble was on March 13, the day before her operation. There is no dispute, under the evidence, that March 13th was the first outward evidence or manifestation that she had gall bladder trouble. However, her doctor reported that in his opinion the basic cause, from a medical standpoint, originated two or three months before the operation. The question is shall we construe the quoted provision of the policy to become effective from the date the disease first manifested itself to the patient or from the date the medical cause of the disease may have begun or had its orgin? A summary of the rules applicable to these questions is set forth in 45 C.J.S., pages 971 and 972, Sec. 893, in these words: "Inception of disease or disability. Policy provisions precluding recovery for disease or disability originating before a prescribed time have been held to be valid, and such a condition is of the essence of the contract and its fulfillment is a prerequisite to recovery, as where liability is limited to cases where illness begins after issuance of the policy, or at or after a specified period from the date of the policy. Such clauses have been strictly construed against the insurance company, and an illness or disability has been deemed to have its inception when the disease first becomes manifest or active, and not at the earlier time when the medical cause of the disease may have begun or had its origin. Accordingly, such a policy covers losses resulting from illness which first manifests itself after the prescribed period notwithstanding the medical cause thereof antedated such period." In many of the states the rule has been adopted that the cause of the disease originates and has its inception, within the meaning of such provisions, when the disease first becomes manifest or active, although the medical cause of the disease might possibly have existed prior to the time of its manifestation. Cohen v. North American Life Casualty Co., (Minn.) 185 N.W. 939; Fohl v. Metropolitan Life Ins. Co., (Cal.) 129 P.2d 24; American Insurance Co. of Texas v. Brown, (Okla.), 222 P.2d 757. This Court appears to have accepted that rule. In Providence Life Accident Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180, this Court said, "The court charged the jury, for the plaintiff, that by the beginning of the disability of the plaintiff is meant the time when the disease first became manifest or active, and did not mean the time when the medical cause of the disease may have originated or begun. It is urged that this instruction is erroneous, and the proof shows that his system was infected with disease before July 3rd, although the disease became active or manifest only on that date. We think the instruction is a correct pronouncement of the law, and that the court was not in error in giving this instruction."
Affirmed.
Lee, Arrington, Ethridge and Gillespie, JJ., concur.