Franklin Life Ins. Co. v. Tharpe

• Decision Date: 07 January 1938
• Citation: 178 So. 300,130 Fla. 546
• Parties: FRANKLIN LIFE INS. CO. v. THARPE.
• Court: Florida Supreme Court

178 So. 300

130 Fla. 546

FRANKLIN LIFE INS. CO. v. THARPE.

Florida Supreme Court, Division B.

January 7, 1938

Rehearing Denied Feb. 3, 1938.

Suit by Virginia Y. Tharpe, a widow, against the Franklin Life Insurance Company, an Illinois corporation doing business in the State of Florida, on a life policy in which the plaintiff was named beneficiary. From a judgment for the plaintiff, the defendant appeals.

Affirmed. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Francis M. Miller, of Miami, for appellant.

Harry Gordon and Rosenhouse & Rosenhouse, all of Miami, and Waller & Pepper and B. A. Meginniss, all of Tallahassee, for appellee.

OPINION

CHAPMAN Justice.

This cause is here for the second time. It is reported in 118 Fla 832, 160 So. 199. The parties will be referred to in this opinion as they appeared in the court below as plaintiff and defendant. On May 14, 1935, Virginia Y. Tharpe, widow, filed her amended bill of complaint in the circuit court of Dade county, Fla., in chancery, and alleged, among other things the issuance of a policy of insurance by the defendant on March 21, 1923, on the life of Lester T. Tharpe for the sum of $3,000, and the plaintiff was the named beneficiary; that premium thereon for the first years was paid to the defendant. The policy contained the provision, viz.: 'If the insured (Lester T. Tharpe) shall become totally and permanently disabled by bodily injury or by disease * * * and shall furnish proof satisfactory to the Company of such disability, the Company agrees to waive further payment of premiums under said policy, such agreement to become operative only after endorsement of the same has been made on the policy by the Company.' That during the month of February, 1924, the insured took influenza or la grippe and it developed into pulmonary tuberculosis from which he died on March 26, 1926. The insured traveled from place to place in an effort to find a climate suitable to procure a recovery. It was further alleged that insured was totally and physically incapacitated from giving notice or filing proof of his disability with the company. Plaintiff had no knowledge of the existence of the policy until November, 1930. It is asserted that the policy had not lapsed for the nonpayment of premiums and was in full force on the day of his said death. The prayer of the amended bill is for an order establishing policy, relief against a forfeiture thereof, and an accounting thereon, with inclusion of attorney's fees as provided by statute.

The amended bill was attacked by motion to dismiss because the policy and claims thereunder were barred by the statute of limitations, no equity, laches, and for failure to furnish proof of disability prior to (defendant's) cancellation. Motions to strike parts of the bill and for better particulars, and each motion was overruled and denied by the lower court.

The defendant by answer admitted the issuance of the policy and as a defense against recovery contended, among other things, the failure to furnish proof of total and permanent disability according to the terms of the policy, and the first information as to disability was on November 26, 1930; that insured was physically able to inform or notify defendant by sufficient proof as to his physical disability; that the cause of action did not accrue within 5 years before the institution of the suit and laches existed which would prevent a recovery, and that the second premium was not paid on the policy by the insured or any person in his behalf. Other allegations appear in the answer not material to recite.

The cause was by an order of the court referred to Hon. Thomas J. Dowdell with instructions to take all the evidence offered by the parties and to report his findings on questions of law and fact to the court with proper dispatch.

The parties appeared and all the testimony was taken and his report contained a recommendation to the effect that the equities of the cause were with the plaintiff and that she should recover the sum of $3,000, with interest, the sum of $1,250 as attorney's fees, and court costs in the approximate sum of $150. Exceptions to the report of the special master were promptly made and, on final hearing by the chancellor, overruled and denied. A final decree for the plaintiff was entered and this appeal perfected, supersedeas order entered and bond given and approved, and the cause is here for review with two assignments of error for reversal.

The first assignment is the denial by the lower court of the motion to dismiss the amended bill of complaint on the grounds of (a) no equity; (b) remedy at law; (c) conclusions of pleader; (d) action did not accrue within 5 years prior to suit; (e) laches; (f) condition precedent not alleged; (g) no proof of total disability as required by the policy. It is unnecessary to consider the order denying the motion to strike portions of the amended bill or motion for bill of particulars.

The contract of insurance involved here is one controlled by the laws of Florida. An insurance policy, like other contracts, should be construed or interpreted so as to give effect to the intention of the parties to be determined by the instrument as a whole. The purpose of a policy of insurance is intended or designed to secure the indemnity stated in the policy. When terms thereof are ambiguous, they should be fairly construed so as to effectuate their purpose, design, and intent. This court has held where there are conflicting clauses in an insurance policy, the one which affords the most protection to the insured will prevail.

The motion to dismiss the bill of complaint requires a construction of an interpretation by this court of the clause in the policy of life insurance, viz.:

'If the insured * * * shall become totally and permanently disabled by bodily injury or by disease * * * and shall furnish proof satisfactory to the Company of such disability, the Company agrees to waive further payment of premiums under said Policy, such agreement to become operative only after endorsement of the same has been made on said Policy by the Company.'

The above clause, under certain conditions, agrees to waive certain premium payments when the physical condition of the insured is such that he is totally and permanently disabled by disease. The bill of complaint shows that the policy of insurance issued on March 21, 1923, and the insured died March 26, 1926. It is alleged that in February, 1924, insured contracted influenza or la grippe and shortly thereafter his disease was by a physician pronounced as pulmonary tuberculosis. The second annual premium on the policy of insurance matured March 21, 1924, with 30 days' grace payment permitted. It was alleged that his total permanent incapacity, caused by the disease, viz., tuberculosis, prevented insured from filing proof of disability with the company. The beneficiary had no knowledge of the existence of the policy until November, 1930.

Total and permanent disability is defined in volume 5, 2d Ed., Joyce on the Law of Insurance, par. 3031, p. 5217, viz.: '3031. 'Total Disability', 'Permanently Disabled', 'Wholly Disabled,' etc.; Accident and Benefit Insurances.--The clauses as to 'total disability', etc., are, with certain exceptions, so various and complicated, especially so when considered in connection with other clauses in the same policy or contract, that it is difficult to determine whether the insurance companies have strenuously endeavored to thereby evade payment if the intricacies of language will so permit, or whether they are with the utmost good faith perhaps over-zealously, endeavoring to protect themselves and the funds with which they are entrusted. * * *

'Total disability does not mean absolute physical inability to transact any kind of business pertaining to one's occupation, but it is sufficient if his injuries are such that common care and prudence require him to desist from transacting any such business in order to effect a cure. And it follows that the preservation of life and health is such an important consideration that it may become necessary that assured desist in the pursuit of his business transactions; and if he is prevented from substantially performing every part thereof, there is a total disability. So under an Indiana case it is not necessary that assured be so wholly disabled as to be unable to perform any and every kind of business pertaining to his occupation but it is sufficient if his disability is such that he cannot do any and all kinds of business pertaining to his occupation; and where the policy clauses are ambiguous the rule of liberal construction in favor of assured will apply.'

Par. 3032, text page 5222, supra:

'* * * (a) 'Total and permanent disability' to perform or direct any kind of labor or business means that the disability must not only be 'total' but that it must also be 'permanent', so far as the ability to perform or direct any kind of labor or business is concerned; and if assured becomes totally disabled both to 'perform and direct' any and all kinds of business he is, necessarily, totally disabled either to 'perform and direct'.' * * *

'(c) Total disability does not mean absolute inability to perform some acts or duties in the transaction of his business or in carrying on his occupation by assured. And although the stipulation is: 'Wholly and continuously disabling said member from transacting any and every kind of business pertaining to the occupation' covered by the policy terms, the contract should receive a reasonable construction so as to effectuate the purpose intended, and inability to perform some kinds of business pertaining to insured's occupation, as in case of a merchant would not...