I am unable to agree that the judgment of the Circuit Court in this case should be reversed upon the ground that it is entirely barred by the Statute of Limitations cited in the able opinion of the Chief Justice. The latter is concluded with the statement that the insured did not file satisfactory proof of loss before reaching the age of sixty years, despite the policy stipulation therefore and was allowed to recover on a claim of disability accruing after he had reached the stated age.
The proof of claim for disability benefits was prepared and submitted considerably before the insured attained the age of sixty and appears to have been upon forms furnished by the insurer and was accompanied by certificates of physicians. The record contains a letter dated July 12, 1932, from the cashier of the Savannah (Georgia) branch office of the insurer to the claimant wherein is quoted a letter from the home office dated July 8th, as follows:
"Please advise the Insured under the above numbered policy that the Company has now completed its investigation in respect to his claim for disability benefits and from the evidence submitted and information obtained by the Company, it does not appear to the Company that he is totally and presumably permanently disabled, within the meaning of the provision in the policy. It does not appear that he will be for life (prevented) from pursuing some gainful occupation. The Company is not justified, therefore, in approving claim for disability benefits.
"Explain to the Insured that the provision in the policy referring to disability benefits applies to total disability of a permanent nature only, and not to total disability of a temporary nature."
Whether under the provisions of this policy the "due proof" referred to, of disability before age sixty, must be received by the insurer before the insured reaches such age need not be determined in this case for in view of the foregoing letter in evidence there is no doubt of its receipt in *Page 517 such time by the insurer and there is likewise no doubt of its action thereupon. It refers to consideration of the evidence submitted "and information obtained by the Company," necessarily other information.
The purpose of the requirement of the submission of proof was very evidently accomplished for it put the insurer on notice of the claim and its letter declining it shows that it made its own investigation. Wade v. Metropolitan Life InsuranceCompany, 179 S.C. 70, 183 S.E., 589; Pagni v.New York Life Insurance Company, 173 Wn., 322,23 P.2d 6, and note, 93 A.L.R., 1325, 1342. "Due proof" in the policy provision cannot, of course, mean proof necessarily convincing to the insurer of its liability upon the claim, else there would be no litigation of such claims and it is well known that disputes thereabout are a fruitful source of litigation.
The situation existing in this case was well described in the order on Circuit adopted by this Court as its judgment inCorley v. Atlantic Life Insurance Company, 179 S.C. 95,183 S.E., 596, 598, as follows: "If the company declined to honor the claim and concluded that he was not entitled to the protection thereby afforded and the insured thought himself aggrieved thereby, he could have instituted an appropriate proceeding for the recovery of these benefits. Thereupon the court would have concluded whether under the facts and obtaining law, liability rested upon the defendant to waive the payment of premiums and grant the monthly income payments."
However, here the plaintiff did not bring his action for approximately eight years after the submission of his proof of claim and the insurer's declination to honor it. Is he deprived by the Statutes of Limitations of the benefits of the policy provision as to those (benefits) accruing within six years last prior to the time of the commencement of the action? I do not think so, because the benefits accrued annually, both as to the payments which equalled one-tenth of the face of the policy and the waiver of the payment of the annual *Page 518 premiums. The policy constitutes a single contract but is divisible by its terms so as to give rise to more than one cause of action; each default or violation may be the subject of an independent action. 81 A.L.R., 380, 99 A.L.R., 1172, 29 A.J., 882, Insurance, Section 1169. This statement is subject, of course, to the rule that all sums due at the time of commencement of an action must be included therein. Floyd v. Insurance Company, 187 S.C. 344, 351,197 S.E., 385.
It is well settled in this State that in such an action as this recovery can be had only of the benefits accruing up to the time of the commencement of the action. Black v. JeffersonStandard Life Insurance Company, 171 S.C. 123,171 S.E., 617; Odiorne v. Prudential Insurance Company, 176 S.C. 69,179 S.E., 669; Ellis v. Kansas City L. InsuranceCompany, 187 S.C. 334, 197 S.E., 398. The bedrock of these decisions is that each dishonored obligation for a disability payment or premium waiver is a separate and distinct cause of action and the converse of their holdings must be, I think, that only the disability benefits (payments and waivers of premiums) which antedate the action more than six years are barred by the Statute of Limitations.
In the case of Black v. Jefferson Standard Life InsuranceCompany, supra, about twenty months elapsed between the beginning of the disability and the submission of proof and it was held that only those disability payments maturing and the policy premiums paid after submission of the proof were recoverable. In this case the recovery under review was only of benefits accruing and premiums paid after submission of the proof of claim and within six years before the time of the commencement of the action.
The effect of the trial and verdict of the jury, which I see no reason in the record to disturb, was the finding that the insured had become wholly and, presumably, permanently disabled, within the terms of the policy, before he reached the age of sixty years, but recovery was limited by the application of the statute to the period of six years next preceding *Page 519 the action. The insurer has not been prejudiced; in fact it has by the failure of plaintiff to sooner sue been saved the disability payments and the policy premiums which accrued during the years for which recovery is now barred by the statute. The insured has wronged only himself by his delay in bringing suit.
The fact that the total annual premium was decreased under the terms of the policy when the insured reached the age of sixty years is unimportant. It had been added to cover the insurer's risk of the disability of the insured beginning before that age, the very loss for which this action was brought and the recovery had. It appeared in Owens v. MetropolitanLife Insurance Company, 178 S.C. 105,182 S.E., 322, that there was no additional premium on account of a similar policy provision or at least that the premium was the same before and after age sixty, and it made no difference.
The case of Lincoln Life Ins. Co. v. Ghio, 8 Cir.,111 F.2d 307, relied upon by the Chief Justice, is, I think, inapplicable here. In that case no notice or proof of claim of disability within the terms of the policy was given the insurer before the insured reached the age of sixty years which was found and held to be a condition precedent to liability under the policy provision there involved. Here there was notice and proof submitted to the insurer before age sixty, whether or not then required by the terms of the policy involved.
Question similar to this was presented to the Court of Appeals of Georgia in its case of Metropolitan Life InsuranceCompany v. Foster, 1936, 53 Ga. App. 21,184 S.E. 660, wherein the unanimous opinion was written by Chief Justice Broyles. There the policy provided sixty monthly installments in case of disability. The latter was alleged and proven to have occurred on January 3, 1926, and plaintiff brought this action in 1934, conceding that the first twenty monthly installments (of the sixty provided for in the policy) were barred by the Statute of Limitations and asked only for recovery of the last forty. The first installment accrued *Page 520 on October 4, 1926, on which date the company denied liability by letter. Disposition of the question was the same as that above suggested, and the Court said: "Since, under the policy, the insurance was not due in a lump sum at the time of the injury, but was due in sixty monthly installments of $72 each, the cause of action was not barred. * * * `"Where a judgment is made payable in installments, the statute of limitations applies to each installment separately, and does not begin to run on any installment until it is due."'"
To the same effect are Atlantic Life Insurance Companyv. Serio, 171 Miss., 726, 157 So., 474; Aetna Life InsuranceCompany v. Langston, 189 Ark. 1067, 76 S.W.2d 50. and Pacific Mutual Life Insurance Company v. Jordan. 1935, 190 Ark. 941, 82 S.W.2d 250. In the last-cited case disability occurred in 1926, proof thereof was filed with the insurer in 1927 and action was brought in 1934; the syllabus of the Court is: "Action on policy of disability insurance for monthly disability benefits held not barred by five-year statute of limitations, though recovery was limited to five-year period immediately preceding filing of action."
MR. JUSTICE FISHBURNE concurs.