Opinion
No. 31860.
October 28, 1935.
1. INSURANCE.
Insured seeking to recover on life and accident policy for fracture of astragalus bone of ankle had burden of proving that X-ray photograph of fracture which policy required as part of proofs was readable when delivered to local agent of insurer.
2. INSURANCE.
In action on life and accident policy to recover for alleged fracture of astragalus bone of ankle, evidence held insufficient to establish that X-ray photograph which policy required as part of proofs was readable when delivered to local agent of insurer.
3. INSURANCE.
Delivery to insurer of X-ray photograph of allegedly fractured bone which was so dark as to be unintelligible held insufficient to comply with requirement of life and accident policy that proofs of loss should include X-ray photograph indicating fracture.
4. INSURANCE.
Requirement of life and accident policy insuring against broken arms or legs that insured submit with proofs an X-ray photograph indicating fracture held reasonable and valid.
APPEAL from the circuit court of Prentiss county; HON. THOS. H. JOHNSTON, Judge.
Jas. A. Cunningham, of Booneville, for appellant.
We invite the court's attention to the disputed stipulation in the contract, section 6, Broken Arm or Leg, the material part of which reads as follows: "If there is no default in payment of premium on the date of such disability or accident . . . upon receipt of satisfactory proofs, including an X-ray photograph indicating the complete fracture of arm at or above the wrist, or leg, at or above the ankle, the company will pay one-twentieth of the value of this policy, etc."
There can be nothing clearer to the writer's mind than the above stipulation; it violates no statute, and it violates no public policy, and while technical, yet it is a wholesome provision and in nowise unreasonable.
We see no reason why the trial judge should have awarded a recovery in the face of the plaintiff's failure to furnish the company an intelligible picture, and in the face of his negligent and stubborn conduct in not making any reasonable effort to furnish an intelligible picture.
American Bankers Ins. Co. v. White, 158 So. 346; 32 C.J., Insurance, secs. 177 and 259.
Eugene P. Lacy, of Booneville, for appellee.
The rule is too well settled in this state to need citations or authority that questions of fact in the trial of cases in circuit court are issues to be determined by the jury.
Not only are questions of fact issues for the jury, but this court has also held that whether proof of disability has been made is a question for the jury. It cannot be denied that the sole question in this case is one of proper proof.
Franklin Life Ins. Co. v. Jones, 169 Miss. 91, 152 So. 285; 26 R.C.L. 1067, sec. 75.
A jury was waived and this case was submitted to the court by agreement under section 577, Code of 1930. Where such a case is tried the findings of the court are treated with the same import as the verdict of the jury.
Robertson v. Cloud, 47 Miss. 208; Wessinger v. Mausur, 75 Miss. 64, 21 So. 757.
We submit that the evidence submitted justified the court in determining for the appellee, and that it cannot be said that the verdict was so contrary to the evidence, or the weight of evidence in this case as to justify setting aside the verdict.
20 R.C.L. 274, sec. 56; Miss. P. L. Co. v. Smith, 169 Miss. 447, 153 So. 376.
On September 6, 1933, appellee was carrying, in full force with all premiums paid, a life and accident policy with appellant company. The policy covered insurance against broken arms or legs, and in that connection contained the following stipulation:
"If there be no default in the payment of premiums on the date of such disability or accident and if this policy continues in full force and all premiums required herein are duly paid, upon receipt of satisfactory proofs, including an X-ray photograph indicating the complete fracture of an arm at or above the wrist, or a leg at or above the ankle, the Company will pay one-twentieth of the value of this policy, provided however, that in no event will a second payment be made for the breaking of the same limb or limbs."
On the date mentioned the insured suffered an accident to his ankle, and when an X-ray photograph was taken thereof, the photograph, when first taken, disclosed a fracture of the astragalus bone of the ankle. The proper proof of loss, and the X-ray photograph were delivered to the local agent of the insurance company who at once forwarded the same to the home office of the company.
When the X-ray photograph reached the home office, it was so dark that it was unintelligible in so far as concerned the depiction of a fracture, and in fact was so dark that no fracture was thereby disclosed. The home office immediately communicated information of this fact through its local agent to insured with the request or suggestion that another X-ray photograph be taken and forwarded, finally offering to have this new photograph taken at the expense of the company, but no additional or intelligible X-ray photograph was ever thereafter furnished.
Upon the trial the contested point and the only point at issue between the parties, either upon the law or upon the facts, was whether at the time the X-ray photograph was delivered to the company it was an intelligible photograph. It is undisputed that when it reached the home office it was not intelligible or readable so far as the disclosure of any fracture was concerned; the testimony is utterly silent as to the condition of the photograph when it was delivered to the local agent. The local physicians who took the photograph testify, and their testimony is undisputed, that it was readable and disclosed the fracture when it was first taken and before it became dry, but their testimony wholly fails to disclose whether it was intelligible or readable after it became dry, or when it was delivered to the agent of the company, and they admit that such photographs often become darkened in the process of drying.
The testimony, therefore, fails to disclose as a matter of actual fact whether the photograph when delivered to the agent of the company was intelligible or readable, as to which the burden of proof was upon appellee, assuming for the purposes of this case that a delivery to the agent was a delivery to the company. To deliver to the company a photograph so dark as to be unintelligible does not comply with the quoted stipulation, which stipulation is entirely reasonable and valid.
Reversed and remanded.