September 26, 1932.
Permitting copy of policy attached to declaration to be amended to conform to policy actually issued held not error.
Imposition of costs is discretionary with trial courts.
Insurance contracts are construed most strongly against party drafting contract, and most favorably to policyholder.
4. INSURANCE. That skin disease appeared on sexual organ of insured held not to exempt insurer from liability under clause providing that disease of organs not common to both sexes was not covered by policy where disease could be contracted by either sex on any part of body.
Clause which provided that policy does not cover disease of organs which are not common to both sexes contemplated that the exception should be to a disease of an organ not common to both sexes, and did not contemplate a skin disease which could be contracted by any one on any part of body.
APPEAL from circuit court of Bolivar county. HON. WM. A. ALCORN, Judge.
C.E. Valentine, of Cleveland, for appellant.
Defendant was sued upon a "Business Men's Special Non Prorating Policy" with its various provisions and amounts, and suddenly compelled to defend on another policy altogether with different provisions and amounts, and the amendment of the application aforesaid precluded defendant from having the benefit of the testimony of attending physicians and was compelled to rest its case without such evidence which would have been entirely competent as the exhibits stood at the beginning of the trial. Certainly it is true that amendments are liberally allowed, but this is more than an amendment.
Every court may protect a party from being taxed with fees and costs of an excessive number of witnesses summoned at the expense of his adversary.
Section 682, Code of 1930.
Section 567, Code of 1930, providing for allowance of amendments where reasonable, also provides that such amendments be made on such terms, as to costs and delay, as may be proper, and that either party may except thereto, and assign same as error.
When, by an interlocutory judgment, any other part of the pleading shall be adjudged insufficient, all costs occasioned by such bad pleading shall be adjudged against him who committed the fault.
Sec. 567, Code of 1930.
Since, this ulcer, benign tumor on penis, benign growth on penis, boil on the penis, or epithelioma of the penis is certainly a disease of an organ not common to both sexes, it is likewise certain that a disability resulting therefrom is one not insured against by the policy sued on, and the appellee could not recover for such disability. It is not enough that plaintiff merely suffer loss.
It is essential for plaintiff, in his pleading, to bring the case within the terms of the policy by alleging a loss from the happening of the event or peril insured against.
33 Corpus Juris, 87, sec. 801.
Provisions in accident insurance policies, excepting certain classes and kinds of injuries and causes of death, are recognized as valid and binding contracts by the courts of Missouri and elsewhere.
Scales v. National Life Accident Ins. Co., 186 S.W. 948; Order of United Commercial Travelers of America v. Dobbs, 204 S.W. 468; Riley v. American National Insurance Company, 123 S.E. 33.
The furnishing of proof of loss as required by the policy is a condition precedent to an action for the loss.
33 C.J. 74.
W.W. Millsaps and Jno. T. Smith, both of Cleveland, for appellee.
It was proper to allow the amendments.
Secs. 567, 568, Code of 1930.
There were no material changes made in the exhibit.
The statute plainly provides that "the court shall require all such amendments to be made on such terms, as to costs and delay, as may be proper to prevent surprise or undue advantage.
It is the contention of the appellee that the ruling of court in connection with the motion to tax the insured with the costs which had accured to the time was correct. Certainly the appellant could not maintain the position that the amendment caused it to be taken by surprise, or that any undue advantage had been taken of it.
The policy of insurance now under consideration exempts the insurer from liability for "diseases of organs which are not common to both sexes." The disease from which the insured suffered was a very rare skin disease and attacked the insured on the belly wall and penis. Certainly the skin is common to both sexes. The disease from which the insured suffered was not a disease of the penis, but a disease of the skin.
Policies of insurance are to be construed liberally in favor of the insured and strictly against the insurer.
Liverpool and London and Globe Insurance Company v. Van Os and Shuster, 63 Miss. 431; Shivers v. Farmers Mutual Fire Insurance Company, 55 So. 965; United States Fidelity and Guaranty Company v. Hood, 87 So. 115.
Jno. T. Smith, of Cleveland, for appellee.
Where the proof has made a loss apparently within the policy the burden is on the insurer to prove that the loss arose from a cause for which it is not liable.
R.C.L. vol. 14, page 1437, sec. 599.
It is also well settled that this clause should be construed strictly against the insurer.
Dance v. Southern Surety Co. of New York, 134 So. 724.
The appellee, Blaylock, brought suit against the appellant in the circuit court of Bolivar county for a disability benefit alleged to have accrued to him under the terms of a policy issued to him on the 13th day of September, 1928.
It was alleged that on January 1, 1929, and before the 1st day of April, 1929, premiums due on said policy had been paid, and that, during all times thereafter set forth, the policy was in full force; that he became ill in March, 1929, and on March 21, 1929, he entered the Kings' Daughters Hospital at Greenville, Mississippi, where he remained totally disabled and under the care of physicians until April 2, 1929; that between said dates he was suffering from chronic ulcer, and that during all of said time he was totally disabled, and that he paid certain hospital bills; that the policy contracted to pay him benefits amounting to eighty dollars per month while under the care and treatment of a physician, and while so disabled, and that said insurance company became indebted to him in the sum of fifty-three dollars and fifteen cents to said date; that on the 26th day of May, 1929, while the policy was in force, and while suffering with chronic ulcer, according to the evidence he was totally disabled, and it was necessary for him to return to the hospital where he remained under the care of a physician until July 14, 1929, and that the defendant insurance company thus became indebted to him in the sum of two hundred eight dollars and thirty-one cents; that he returned to his home after being discharged from the hospital, and remained until the 30th day of October, 1929, during all of which time he was under the care and treatment of a physician, and by reason of this he was entitled, under the policy, to forty dollars; that the defendant insurance company is indebted to him in the full sum of three hundred one dollars and forty-five, for which this suit was brought.
The defendant insurance company filed a plea of general issue, and subsequently, by leave of the court, filed an additional plea of non est factum.
The plaintiff (Blaylock) attached to his declaration an alleged copy of the policy; but, at the trial, it appeared that the copy so attached was not an exact copy of the policy, and, on motion, the court below permitted the copy so attached to be amended to conform to the policy actually issued.
The defendant then moved the court to tax the plaintiff with the costs amounting to the sum of twenty-five dollars, which the court refused to do, and the cause then proceeded to trial.
The plaintiff proved the execution and delivery of a policy, and his total disability and medical treatment, sustaining the allegations of the bill.
The policy contained a clause providing that a disease of organs not common to both sexes is not covered by the policy, that clause of the policy reading as follows: "This policy does not cover . . . disease of organs which are not common to both sexes."
There was no special plea setting up this clause in the policy, or any contention alleging that the disease was a disease not common to both sexes. Neither did the declaration make allegation specifically that all the terms and conditions of the policy to be performed on the part of the plaintiff had been performed; but the trial proceeded as though the pleading had been proper.
The report made to the company of the plaintiff, and the certificate of the physician, showed that one diagnosis was that the plaintiff was suffering from epithelioma of the penis; another physician who treated the plaintiff diagnosed the trouble as ferunclosis of penis. The location of the trouble was stated in the application for disability benefits to be on the pubis and penis, and the physician's certificate said that it was a benign epithelioma, and that it has spread from the beginning in both ways.
The final diagnosis that the trouble was granuloma ingunale was the result of a laboratory test made of matter taken from the boil or sore, and this reported to be a very rare skin disease, there being in 1929 only fifteen white, and about forty-five negro, cases in the United States. Therefore both diagnoses showed the disease to be a skin disease. The testimony of the physician at the trial showed that this disease was not common to the sexual organs of either sex, and was not a disease common to one sex alone, but was a disease of the skin which could be contracted by any person on any part of the body.
We do not think there was error on the part of the court below in permitting the amendment. It was permitted by statute so as to bring the merits of the controversy to trial. We do not think there was any prejudicial harm done the defendant, or that any costs and expenses were particularly incurred by reason of the error in copying the policy to make it an exhibit to the bill. The matter of imposition of costs is discretionary with the trial courts, and we could not reverse the court for this reason.
The defendant contends that it should have had a peremptory instruction, because the proof shows that the disease appeared upon an organ of the body not common to both sexes, and that therefore it was not one of the disabilities insured against.
It is a familiar rule of construction of contracts, and especially insurance contracts, that they are construed most strongly against the party drafting the contract, and most favorably to the policyholder.
There is no dispute to the testimony of the physician testifying at the trial, stating that the plaintiff was suffering from a skin disease, which was not a disease of an organ not common to both sexes within the meaning of the terms of the policy.
We think the policy contemplated that the exception should be to a disease of an organ not common to both sexes, and that it did not contemplate a skin disease which could be contracted by any one, on any part of the body. A disease of the skin is not, within the meaning of the policy, a disease of the penis, the sexual organ of the plaintiff.
We think there is found sufficient authority for sustaining this contention in the case of Shuler v. American Benevolent Association, 132 Mo. App. 123, 111 S.W. 618, 621, wherein the association defended on the ground that cancer of the womb was a disease peculiar to women, and the court said:
"The disease itself was not shown and, in fact could not have been shown, to be peculiar to women, for it is common knowledge that it attacks men as well as women, and the fact that it at times shows itself in an organ possessed by women and not by men does not make it a disease peculiar to women, for it could not be peculiar to women unless men are immune from its ravages, and we think the correct interpretation of the provision in the contract, exempting the association from liability for sickness caused by diseases peculiar to women, covers only such diseases as women have, and from which men are immune."
We find no reversible error in the judgment of the court below.