Allen v. National Life & Acc. Ins. Co.

• Court: Kansas Court of Appeals
• Writing for the Court: BLAND, J.
• Citation: Allen v. National Life & Acc. Ins. Co., 67 S.W.2d 534, 228 Mo.App. 450 (Kan. App. 1934)
• Decision Date: 29 January 1934
• Parties: LIZZIE ALLEN, RESPONDENT, v. THE NATIONAL LIFE & ACCIDENT INSURANCE CO., APPELLANT

67 S.W.2d 534

228 Mo.App. 450

LIZZIE ALLEN, RESPONDENT, v. THE NATIONAL LIFE & ACCIDENT INSURANCE CO., APPELLANT

Court of Appeals of Missouri, Kansas City

January 29, 1934

Appeal from Circuit Court of Jackson County.--Hon. Ralph S. Latshaw Judge.

Reversed and remanded.

G. W Duvall, V. H. Monteil and W. W. Filkin for respondent.

McAllister Humphrey, Pew & Broaddus for appellant.

OPINION

BLAND, J.

This is an action upon two policies of insurance. There was a verdict and judgment in favor of plaintiff in the sum of $ 2,418. Defendant has appealed.

One of the policies provided for the payment to plaintiff of weekly benefits in the sum of $ 5 per week for a period of twenty-six weeks in each year, in the event that plaintiff became totally disabled. The other provided for the payment of $ 1 per week during the same period under like conditions.

Plaintiff alleged in her petition that she became totally disabled on October 29, 1927, and that she would continue to be so disabled during the remainder of her life. She asked judgment for the sum of $ 156 claimed to be due her at the time of the filing of the petition. She further alleged that in October, 1929, defendant repudiated the contract and that she had an expectancy of life running 28.18 years; that she was entitled to recover, in addition to the sum of $ 156 due, the sum of $ 4,396.08, being the amount of the indemnity to accrue during her expectancy of life.

The evidence shows that plaintiff was totally disabled as a result of an elevator accident. It was admitted that all premiums were duly paid and plaintiff alleged in her petition that she had performed all of her duties under the policies. Defendant paid the benefits as they accrued for a period of six months after the accident, at which time it refused to make any further payments.

In support of her case and over the objection of defendant, plaintiff introduced an actuary and through him the American Insurance Tables of Mortality. The witness testified that these tables were based upon the expectancy of life of persons in good health and that the expectancy of a person of the age of plaintiff was 23.08 years. Defendant throughout the trial objected to any testimony relative to plaintiff's condition after the institution of her suit.

Defendant insists that the court erred in refusing its Instructions One, Two and Three, in which instructions it was sought to limit the right of plaintiff's recovery for weekly benefits that were due when her suit was filed.

It will thus be seen that this appeal involves the question as to whether the holder of a contract of insurance providing for periodic payments of benefits for disability is entitled to a commutation of such benefits which might become due in the future, on the ground that the insurance company has been guilty of an anticipatory breach of the contract, the determination of the future benefits being based on the life expectancy of the insured. The solution of the question presented depends upon a proper application of the rule announced in the leading case of Roehm v. Horst, 178 U.S. 1, 44 L.Ed. 953, 20 S.Ct. 780, which case has been followed in this State. [See Leon v. Barnsdall Zinc Co., 309 Mo. 276, 290, 274 S.W. 699.] In those cases the rule is laid down that where the contract is mutually executory, at least in part, and there are interdependent covenants to be simultaneously performed, a repudiation or renunciation of the contract, on the part of one, covering the entire performance, before the time of performance, is such a breach as gives immediate right of action for the entire damages arising as a result of the breach; but where one party has completely executed his part of the contract and it is executory on the part of the other party only, or where the contract is unilateral or it is bilateral but contains an independent promise, such as a contract with respect to the payment of money at specified times, in case of repudiation a suit may be maintained only for each installment as it becomes due, or, if action is not brought until more than one installment is due, then all that are due may be sued for in one action. [See, also, State ex rel. v. Fidelity & Deposit Co., 228 S.W. 865, 867.]

The question, therefore, is whether the indemnity contracted for in the policies of insurance before us come under the heading of mutually executory contracts or whether the contracts have been executed by one party. We think that these contracts of insurance come under the latter. Plaintiff has fully performed her part of the contracts and there remains nothing to be done except for defendant to pay the installments at the times specified. [Puckett v. National Mutual Annuity Ass'n, 134 Mo.App. 501, 114 S.W. 1039; Hardie v. Met. Life Ins. Co., 7 S.W.2d 746; Howard v. Benefit Ass'n of Ry. Employees (Ky.), 39 S.W.2d 657; Woods v. Prov. Life & Acc. Co. (Ky.), 42 S.W.2d 499; Garbush v. Order of U. Com. Trav. (Minn.), 228 N.W. 148; Atkinson v. R. R. Emp. Mut. Rel. Soc., 160 Tenn. 158, 22 S.W.2d 631; Met. Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; B. & O. Relief Ass'n v. Post, 122 Pa. 579, 15 A. 885; Donlen v. Fid. & Cas. Co., 192 N.Y.S. 513; Mid-Continent Life Ins. Co. v. Walker, 128 Okla. 75, 260 P. 1109; State Life Ins. Co. v. Atkins (Tex.), 9 S.W.2d 290; N. Y. Life Ins. Co. v. English, 96 Tex. 268, 72 S.W. 58; Met. Life Ins. Co. v. Day, 145 Ga. 425, 429, 89 S.E. 576; Green v. Inter-Ocean Cas. Co., 203 N.C. 767, 167 S.E. 38; Com. Cas. Ins. Co. v. Campfield, 243 Ill.App. 453; 3 Williston on Contracts, pp. 2373, 2374; Washington County v. Williams, 111 F. 801, 810; Moore v. Sec. Trust & L. Ins. Co., 168 F. 496; Parks v. Md. Cas. Co., 59 F.2d 736; Kithcart v. Met. Life Ins. Co., 1 F.Supp. 719; Wyll v. P. Mut. L. Ins. Co., 3 F.Supp. 483; 1 C. J., pp. 515, 1148; 37 C. J., p. 657; 7 Cooley's Briefs on Ins. (2 Ed.), 6614; Bonslett v. N. Y. L. Ins. Co., 190 S.W. 870, 875; State v. Fid. & Dep. Co., 228 S.W. 865, 867; Union R. R. & Transportation Co. v. Traube, 59 Mo. 355, 362, 363; Thetford v. Assurance Ass'n, 140 Mo.App. 254.]

The objection to permitting recovery on the life expectancy of the insured on the theory that plaintiff became totally disabled is well stated in the case of Howard v. Benefit Ass'n of Ry. Employees, supra, l. c. 658:

"The allegations of appellant's petition disclose the uncertain and speculative nature of the measure of damages he seeks to apply. He concedes that he is not entitled to recover upon the basis of the full expectation of life of a healthy person. The liability of the appellee for illness indemnity ceases at the death of the insured which may occur at any time, and judgment for the present value of the monthly payments due under the policy until appellant's death, and attempting to fix appellee's true liability would be necessarily based upon a speculative hypothesis. . . .

"Under a contract like this the appellant should not be permitted to recover payments which by reason of his death or recovery from his illness, might never accrue."

Also to allow such a recovery would be in...