State Life Ins. Co. of Indianapolis v. Parry , 88 S.W.2d 763 ( 1935 )

Appellee sued appellant to recover disability benefits under a policy of life insurance alleging that since April 1, 1930, he has been permanently, continuously, and wholly prevented from performing any work for compensation or profit, or from following any gainful occupation by reason of disease, and that appellant is obligated to pay him the sum of $50 per month from April 1, 1930, to November 1, 1932.

The provisions of the policy upon which appellee rests his case are as follows:

"Total and permanent disability: If the insured, after paying at least one full annual premium and before default in the payment of any subsequent premium, and before attaining the age of sixty years, shall become wholly and permanently disabled by bodily injury or by disease, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, or from following any gainful occupation, the Company, upon receipt at its Home Office of due proof of such disability of the insured as may be required by the Company, will grant the following benefits:

"First: Will waive payment of premium thereafter becoming due;

"Second: In addition will pay to the insured a monthly income equal to one per cent. of the original amount of insurance (exclusive of any accidental death benefit.) The first monthly payment will be made upon satisfactory proof of disability as above provided, and the subsequent monthly payments will be made on the first day of each month thereafter during such disability."

Appellee made proof of his alleged disability about November 22, 1932.

Appellant paid appellee, regularly, each month, after proof was furnished to it, by appellee, the monthly installment due and payable, under the policy, but he here asks for all monthly payments back of the time he made proof of his disability, and, apparently, relies upon the decisions which permit the waiver of payment of premium to begin with the time of disability rather than with the time of proof of disability made to the insurer.

We do not believe that such decisions are applicable to this case.

Mr. Justice Sutherland in delivering the opinion by the Supreme Court of the United States, in the case of Bergholm v. Peoria Life Insurance Co., 284 U.S. 489, 52 S. Ct. 230, 231, 76 L. Ed. 416, said: "Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof."

The provisions of the policy upon which suit was brought to recover monthly benefits (as in this case) are:

"Upon receipt by the Company of satisfactory proof that the Insured is totally and permanently disabled as hereinafter defined the Company will

"1. Pay for the Insured all premiums becoming due hereon after the receipt of such proof and during the continuance of the total and permanent disability of the Insured and will also

"2. Pay to the Insured a Monthly Income for life of 1% of this Policy; the first payment of such income to be paid immediately upon receipt of such proof."

Much stress is laid upon the decision of the Circuit Court of Appeals, 8th Circuit, in the case of Minnesota Mutual Life Insurance Co. v. Marshall, 29 F.2d 977, 979, but that decision has for its sole purpose, as the writer analyzes it, the announcing of the doctrine that, where the insured becomes totally disabled, during the grace period, and dies from the cause of his disability, holding in his hands a policy of insurance with such provisions as are found in the Marshall policy, the courts will construe the policy to mean that the waiver of payment of premiums begins with the disability and not with the making of proof of disability; and that the policy will not be lapsed for failure to pay the premium under such state of facts. But the Marshall Case is not authority to support the case, before us, asking for monthly benefits that have accrued before proper proof of disability has been given the insurer and during the life of the insured, because the opinion states: "A construction making the disability benefits to begin as of the time of proof might be all right where such benefits are sought while the insured is living."

The case of State Life Insurance Co. v. Barnes (Tex. Civ. App.)58 S.W.2d 189, is one in which the waiver of payment of premiums, in accordance with the specific provisions of the contract, is involved, not the collection of disability benefits accrued prior to making proof of disability, to which the stipulation of waiver did not apply. In that opinion the court cites State Life Insurance Co. v. Fann (Tex. Civ. App.)269 S.W. 1111, but the Fann Case concerns the waiver of payment of a premium, as specifically provided for in the policy, by total disability of the insured occurring before default. The case of Mid-Continent Life Insurance Co. v. Hubbard (Tex. Civ. App.) 32 S.W.2d 701, involves the express stipulation of the waiver of a premium.

We are of the opinion that the judgment of the trial court should be reversed and here rendered. Jefferson Standard Life Insurance Co. v. Williams (Tex. Civ. App.) 62 S.W.2d 661 (writ refused); Hayes v. Prudential Insurance Co. (W.Va.) 171 S.E. 824; Parker v. Life Insurance Co., 158 S.C. 394, 155 S.E. 617; Jabara v. Equitable Life Assurance Society, 280 Ill. App. 147; Mobley v. New York Life Insurance Co.,295 U.S. 632, 55 S. Ct. 876, 79 L. Ed. 1621, 99 A.L.R. 1166; Wick v. Western Union Life Insurance Co., 104 Wash. 129, 175 P. 953; Western Southern Life Insurance Co. v. Smith, 41 Ohio App. 197, 180 N.E. 749; Northwestern Mutual Life Insurance Co. v. Dean, 43 Ga. App. 67,157 S.E. 878; Smith v. Missouri State Life Insurance Co., 134 Kan. 426,7 P.2d 65; Berry v. Lamar Life Insurance Co., 165 Miss. 405, 142 So. 445,145 So. 887; New England Life Insurance Co. v. Reynolds, 217 Ala. 307,116 So. 151, 59 A.L.R. 1075; Iannarelli v. Kansas City Life Insurance Co. (W.Va.) 171 S.E. 748; Levitt v. Prudential Insurance Co.,150 Misc. 754, 270 N.Y.S. 39.

In the case before us, the insured does not plead when he made his proof of disability, but merely alleges that he made due proof thereof, and when his evidence is analyzed we find that he waited 32 months before he attempted to furnish proof of his disability, and he neither pleads nor proves any excuse for such delay. Missouri State Life Insurance Co. v. Le Fevre (Tex. Civ. App.) 10 S.W.2d 267.

Appellant specially excepted to the sufficiency of appellee's petition in so far as his allegations of proof of disability are concerned because they do not show "when and on what date, and in what way plaintiff gave notice, or furnished proof to the defendant of his disability."

The trial court overruled the exception, and this is brought before us by proper assignment of error.

The special exception is well taken. Assuredly the appellant was entitled to require appellee to specifically plead when and how he gave notice of his disability and furnished proof thereof to it, in order to properly meet such issue by both pleadings and evidence.

It is true that much more latitude is given the trial court when trying a cause without the intervention of a jury, than when the cause is tried to a jury, but if the pleading is defective and is properly attacked, it should not be permitted to stand, although the cause is tried to the court. But the assignment of error just sustained by us does not require a remand of the cause, for the reasons that the undisputed evidence shows that appellee made no proof of his disability for 32 months after he claims to have suffered such disability, and no excuse for failure to make such proof sooner is pleaded.

We are of the opinion that there is no provision, in the policy before us, with respect to any waiver of notice of disability of the assured, as affects his right to disability benefits, and none is pleaded or proved, independently of the provisions of the policy, and therefore the insured is entitled to the disability benefits only that are provided for in the policy, after he made such proof to the assured.

Accordingly, the former judgment of this court is set aside, and judgment here rendered that appellee take nothing against appellant. Reversed and rendered.