Guardian Life Ins. Co. of America v. Brackett

• Decision Date: 10 May 1940
• Docket Number: 16063.
• Citation: 27 N.E.2d 103,108 Ind.App. 442
• Parties: GUARDIAN LIFE INS. CO. OF AMERICA v. BRACKETT.
• Court: Indiana Appellate Court

27 N.E.2d 103

108 Ind.App. 442

GUARDIAN LIFE INS. CO. OF AMERICA v. BRACKETT.

No. 16063.

Appellate Court of Indiana, in Banc.

May 10, 1940

Denny Adams, Baker & Orbison, of Indianapolis, Parr & Parr of Lebanon, and Louis B. Ewbank and Samuel Dowden, both of Indianapolis, for appellant.

Stark & Manifold, of Indianapolis, and Adney & Adney, of Lebanon, for appellee.

DE VOSS, Chief Judge.

Appellee filed his amended complaint against appellant on a life insurance policy, seeking to recover benefits by reason of an alleged sunstroke which caused permanent total disability and demanding the re-instatement of said policy which had been surrendered.

The amended complaint is in three paragraphs, each paragraph alleging in substance that on the 30th day of March, 1918, he purchased a life insurance policy in the sum of $5,000 from appellant; that one of the provisions of said policy was that in the event of the total and incurable disability of appellee from injury or sickness before arriving at the age of sixty years, said appellant would pay him 10% of the principal of said policy each year so long as plaintiff should be permanently disabled by reason of such injury or sickness. The complaint further alleges that on the 15th day of July, 1931, while the policy was in full force and effect and before appellee arrived at the age of sixty years, he became totally and incurably disabled as the result of a sunstroke, and that he has so remained ever since. That thereafter, while said policy was in full force and effect appellee went to the office of the appellant in the City of Indianapolis, and made proof that he was totally and incurably disabled; that at that time he informed Mr. Rainey appellant's agent, that by reason of his sickness and inability to work he must borrow money on his policy. That said agent, well knowing that appellee was totally disabled, failed to notify said appellee of the disability benefit clause or of its requirements as to written proof, but loaned appellee money on his policy, well knowing that he (appellee) was entitled to disability benefits when such loan was made; that up until recently he did not know, because of his mental condition, of his rights to compensation under the policy, and that such condition was caused by said sunstroke; that said agent thereafter notified appellee to surrender his policy for failure to pay premiums when due.

That said policy provided that during the time disability continued premium payments thereon were waived by said appellant; that in March or April, 1932, appellant notified him to surrender said policy for failure to pay premiums when due, and that appellee, in ignorance of his rights, on demand of appellant, made an affidavit that said policy was lost. That as soon as appellee was mentally able to understand the requirements of his policy he requested blanks on which to make written proof of his disability, which blanks were refused to him by appellant. A copy of said policy is attached to said complaint.

Appellee prays that said policy be declared in full force and effect, that said policy be delivered up by appellant to appellee, and that appellee recover disability benefits under said policy, together with costs.

To this complaint appellant filed an answer in two paragraphs, the first paragraph being in general denial and the second paragraph alleging that said policy was issued as charged by appellee and that thereafter appellee borrowed on said policy the sum of $1,445.30, and that after said loan had been made appellee surrendered said policy upon payment to him by appellant of the full cash surrender value thereof, and that all liability under said policy terminated upon the payment of such cash surrender value.

To this second paragraph of answer of appellant, appellee filed his reply in two paragraphs, the first paragraph being in general denial, and the second paragraph alleging that he may have accepted the cash surrender value as alleged but that he has no remembrance or knowledge thereof, and that if said sum was paid to him he was of unsound mind, which was well known to appellant, and that he (appellee) disaffirmed the acceptance of said sum and the surrender and cancellation of his policy by letter.

The cause was submitted to the court for trial and at the proper time defendant filed a request for special finding of facts and conclusions of law by the court, and the court did so make and file its special finding of facts and stated its conclusions of law adversely to appellant, to each of which conclusions of law the appellant, at the proper time, excepted. Motion for a new trial was filed by appellant, which was overruled by the trial court, and judgment was rendered for appellee as follows:

"It is, therefore, hereby considered, ordered, adjudged and decreed that the policy sued upon in plaintiff's complaint is hereby ordered and is re-instated as of the 7th day of April, 1932, and that all premiums on said policy accruing on and after the 29th day of September, 1931, are ordered and are waived and shall continue to be waived during the continued total and permanent disability of the plaintiff. That the plaintiff shall recover of the defendant benefits accruing on and before the 30th day of March, 1935, with interest thereon to February 19, 1936, in the total sum of $1,219.87, and said benefit payments shall continue so long as plaintiff shall continue totally and permanently disabled; that the defendant has a lien on the policy so re-instated in the sum of $1,445.30, with interest thereon at 6% after February 19, 1936. That the policy sued on in plaintiff's complaint or a duplicate thereof shall be delivered to the plaintiff; that the plaintiff shall recover his costs assessed at $-----."

Appellant assigns as error that the trial court erred in each of its conclusions of law (1 to 11, inclusive) and in overruling appellant's motion for a new trial. The causes assigned in the motion for a new trial are: (1) the decision of the court is not sustained by sufficient evidence; (2) the decision of the court is contrary to law; (3) the assessment of the amount of recovery is too large.

It is maintained by appellant in its brief that the case turns on whether appellant did receive "due proof" as provided in § 24 of the policy involved herein.

In considering the exceptions to the conclusions of law we keep in mind the fact that by such exceptions appellant admits for the purpose of exceptions only, that the facts are fully and correctly found, upon which the conclusions of law are based.

In determining whether the special finding supports the conclusions of law upon which the judgment is based, we cannot dissect the finding into fragmentary parts, but they must be considered as a whole, and all intendments and presumptions are taken in favor of the finding, rather than against it. American Income Ins. Co. v. Kindlesparker, 1936, 102 Ind.App. 445, 450, 200 N.E. 432; Mount v. Board, etc., 1907, 168 Ind. 661, 80 N.E. 629, 14 L.R.A.,N.S., 483; National Surety Co. v. State, 1913, 181 Ind. 54, 103 N.E. 105; Harris v. Riggs, 1916, 63 Ind.App. 201, 112 N.E. 36.

That part of the policy relative to total and permanent disability and due proof thereof, and under which appellee claims liability to exist, reads as follows:

"24. Total and Permanent Disability Benefits. Whenever the Company shall receive due proof during the continuance of this policy and before default in payment of premium that the insured has become wholly and incurably disabled by bodily injury or disease, not due to any cause or condition existing at the time of delivery hereof, so that he is and will be presumably thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit and that such disability has existed continuously for not less than sixty days prior to furnishing such proof--the permanent loss of the sight of both eyes, the loss of both feet above the ankles, the loss of both hands above the wrists, or a similar loss of one hand and one foot, to be regarded as constituting total and permanent disability without prejudice to other causes of disability--then the Company will grant disability benefits as follows:

"(A) If the Disability Occurred before the Insured Attained Age 60:

"1. Waiver of Premiums. Commencing with the policy year next following the receipt of such proof the Company will at the beginning of each policy year waive payment of premium for such year during such disability, and the provisions and benefits of the policy shall be continued in force, except as hereinafter provided, as if such premiums were being paid in cash.

"2. Disability Annuity. Six months after the receipt of such proof, if the disability then exists, the Company will begin to pay to the Insured (with the written consent of the assignee, if any) a disability annuity of one-tenth of the face amount of this policy, and will make such annuity payments annually on the anniversary of the first payment during such disability prior to maturity of the policy. Premiums waived and annuity payments made hereunder will not be an indebtedness on the policy and will not be deducted from any payment or payments to be made when the policy becomes a claim by death or matures as an endowment or in any settlement under the policy.

"The Company will admit the age of the Insured when furnished with satisfactory evidence of the date of birth and reserves the right to require such proof of date of birth at the time proof of disability is furnished."

The court found that the policy in question was sold to appellee on March 30, 1918; that on July 15, 1931, appellee suffered a sunstroke and from and after and on account of said sunstroke appellee was...