Opinion
7 Div. 133.
October 6, 1936. Rehearing Denied October 27, 1936.
Appeal from Circuit Court, Calhoun County; W. B. Merrill, Judge.
Action by Ida E. Barnhill, against the Metropolitan Life Insurance Company. From a judgment for defendant on plea in abatement, plaintiff appeals.
Affirmed.
The suit was one to recover disability benefits under a group policy of insurance. Defendant filed a plea in abatement, setting out a provision of the policy that, under the terms of the group policy, "any employe shall be considered totally and permanently disabled who furnishes due proof to the company that while insured thereunder and prior to his 60th birthday, he has become so disabled as a result of bodily injury or disease, as to be prevented permanently from engaging in any occupation and performing any work for compensation or profit. Six months after receipt of such proof, the Metropolitan Life Insurance Company will commence to pay such employe, in lieu of the payment of the insurance under said policy at his death, equal monthly installments," etc.
It is alleged that at no time has any proof of total and permanent disability been submitted to defendant by plaintiff, that no due proof has thus been submitted as provided by the policy, and that the suit is prematurely brought.
Plaintiff's replications to the plea in abatement, referred to in the opinion, allege in substance that for more than two years it has been the custom of defendant, in adjusting claims under like policies in the community, to begin payment upon completion of investigation and before expiration of six months from date of proof; and that defendant in this case denied liability on the ground of the non-existence of disability.
Chas. F. Douglass, of Anniston, for appellant.
Having established a practice of commencing payments upon completion of investigation, defendant waived the condition in the policy to the contrary, and this waiver is irrevocable. Penney v. Burns, 226 Ala. 273, 146 So. 611; Hibler v. McCartney, 31 Ala. 501.
Chas. D. Kline, of Anniston, and Cabaniss Johnston, of Birmingham, for appellee.
The meritorious questions on the appeal are settled in Box v. Metropolitan L. I. Co., ante 21, 168 So. 209, et seq. Evidence of a custom cannot be received to alter, contradict or vary the express stipulations of a contract. People's Bank Trust Co. v. Walthall, 200 Ala. 122, 75 So. 570; Stephenson Brick Co. v. Bessemer E. C. Co., 224 Ala. 494, 140 So. 573, 575.
As we read this record, every question of merit is fully decided in the case of Box v. Metropolitan Life Insurance Co., ante, p. 21, 168 So. 209; Id., 232 Ala. 447, 168 So. 220-223, including the opinions of this court and of the Supreme Court.
A sufficient answer to appellant's contention that replications 12, 13, and 14 differentiate the case at bar from the Box Case, supra, may be found in the cases of People's Bank Trust Co. v. Walthall, 200 Ala. 122, 75 So. 570; Stephenson Brick Co. v. Bessemer Engineering Construction Co., 224 Ala. 494, 140 So. 573, where it is held that evidence of a custom cannot be received to alter, contradict, or vary the express terms of a contract.
In Corpus Juris it is said, on cited authority, that: "Valid custom and usage concerning the subject matter of a contract of which the parties are chargeable with knowledge, are by implication incorporated therein, unless expressly or impliedly excluded by its terms, and are admissible to aid in its interpretation, not as tending in any respect or manner to contradict, add to, take from, or vary the contract, but upon the theory that the usage forms a part of the contract. But evidence of usage is not admissible to vary or contradict the terms of a plain, unambiguous contract." 17 Corpus Juris, 492 (58). The contract here is plain and unambiguous, and custom of the defendant to settle admitted claims other than as stipulated would not constitute a waiver of its right to stand on the written terms of the contract plainly expressed.
The judgment is affirmed.
Affirmed.