American Nat. Ins. Co. v. Rardin

• Decision Date: 10 December 1918
• Docket Number: 9110.
• Parties: AMERICAN NAT. INS. CO. v. RARDIN.
• Court: Oklahoma Supreme Court

177 P. 601

74 Okla. 146, 1918 OK 715

AMERICAN NAT. INS. CO. v. RARDIN.

No. 9110.

Supreme Court of Oklahoma

December 10, 1918

Rehearing Denied Jan. 13, 1919.

Syllabus by the Court.

When the wording of a policy of insurance is such as to be fairly open to construction, that view should be adopted, if possible, which will sustain, rather than forfeit, it.

Though there be a variance between the allegations of a petition and the facts proved on the trial, yet, if it be a case where an amendment of the petition ought to be allowed to conform it to the facts proved, the judgment will not be reversed on account of such variance.

Section 4790, Rev. Laws 1910, vests the trial judge with a broad discretion permitting amendments to be made when the amendment does not change substantially the claim or defense. The exercise of this discretion does not furnish ground for reversal, unless it is made to appear that there has been an abuse thereof by the trial judge.

A. N I. C., a corporation, issued to Ray A. Rardin an insurance policy in the sum of $5,000, which, among other provisions contained the following: The premium payments herein will cease immediately after the beginning of such disability as above described and will be resumed only as hereinafter provided. Held that, when the insured became totally disabled to engage in any gainful occupation, the requirements relative to the payment of premiums automatically ceased, and that the payment of a quarterly premium after the insured became totally disabled so that he could not engage in any gainful occupation did not operate as a waiver of the clause which provided that said payments should immediately cease when said disability attached to insured.

When a policy of life insurance provides that the insured shall give notice to the company when he becomes totally disabled to engage in any gainful occupation, but does not specify any time within which said notice shall be given, the failure to give said notice will not deprive the insured or his beneficiary of the benefits of said policy, in the absence of an express provision making the giving of the notice a condition precedent to the right to claim the benefits of said clause requiring notice.

Commissioners' Opinion, Division No. 2.

Error from District Court, Oklahoma County; Edward Dewes Oldfield Judge.

Action by Dale M. Rardin against the American National Insurance Company. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. Affirmed.

T. J. McComb and Stephen C. Treadwell, both of Oklahoma City, for plaintiff in error.

B. T. Hainer, of Miami, and Burns & Toney, of Oklahoma City, for defendant in error.

DAVIS C.

This action was instituted in the district court of Oklahoma county, Okl., by Dale M. Rardin, plaintiff, against the American National Insurance Company, a corporation, defendant, to collect the sum of $5,000 alleged to be due plaintiff by reason of an insurance policy issued to Ray A. Rardin by defendant.

The parties will be referred to as they appeared in the trial court; that is, plaintiff in error as defendant, and defendant in error as plaintiff.

On or about the 20th day of July, 1914, on application of Ray A. Rardin, the defendant issued to him an insurance policy in the sum of $5,000. Dale M. Rardin, plaintiff, was named as the beneficiary in said policy. Ray A. Rardin departed this life on the 29th day of March, 1916. Demand was made by plaintiff on defendant for said sum of $5,000, and payment was refused. Thereupon this action was instituted. Upon the trial of said cause a verdict was returned in favor of plaintiff and judgment entered thereon. A motion for a new trial was filed and overruled. From the action of the court in overruling a motion for a new trial, an appeal has been prosecuted to this court for the purpose of review.

Under the first assignment of error, it is urged that the trial court erred in overruling the motion of plaintiff in error for a new trial. Under this assignment it is first urged that the verdict is not sustained by sufficient evidence, and is contrary to law.

The ground upon which the foregoing error is based is that the evidence shows that the quarterly premium that became due and payable on the 5th day of October, 1915, was not paid when the same matured nor within the 30 days of grace allowed by said policy. The 30 days of grace expired on the 5th day of November, 1915, and the assured died on the 29th day of March, 1916. There is no contention that any premium was paid by assured after the 5th day of July, 1915, at which time there was a payment of a quarterly premium which extended the life of the policy up to the 5th day of October, 1915, and assured was allowed 30 days of grace after the 5th day of October, 1915, which made the time expire on the 5th day of November, 1915. The foregoing facts being admitted, we are compelled to look to other provisions of the policy to see whether or not the policy had elapsed prior to the death of assured.

Among other provisions in said policy, it is provided:

"And further agrees to pay five thousand ($5,000.00) dollars, in twenty equal installments of two hundred and fifty ($250.00) dollars each, in the event of total and permanent loss of sight of both eyes, or loss of both arms, or one arm and one leg, or one eye and one limb, of the insured, or if the insured should become totally and permanently disabled to such an extent as to render it impossible for him to engage in any gainful occupation whatever, such total and permanent disability occurring before the insured has reached the age of sixty years, and while this policy is in force, this payment being in lieu of all other benefits designated in this policy, the first installment being payable immediately after receipt by the company of due and satisfactory proof of such total and permanent disability, or such injuries as above defined. If the insured should die before all of said twenty installments have been fully paid, the remaining installments may be continued to the beneficiary hereunder or may be commuted at three and one-half per cent. compound interest and paid in one sum to said beneficiary.

The premium payments hereon will cease immediately after the beginning of such disability as above described and will be resumed only as hereinafter provided."

The petition alleges that the assured on or about the 1st day of June, 1915, became disabled to such an extent as to render it impossible for him to engage in any gainful occupation whatever, and that said disability continued up until the time of his death. This question was submitted to a jury, and there is no controversy here but that the evidence on this question fully sustains the allegations of the petition. It appears that the assured was a hotel clerk in Oklahoma City, at the Kingkade Hotel, at the time the policy in question was issued, and was receiving therefor the sum of $100 per month. The throat of the assured became infected about the 1st day of May, 1915, and gradually grew worse until he became unable to talk above a whisper. About the 30th day of May, 1915, he gave up his job as clerk on account of the condition of his throat. About the 1st day of October, 1915, assured was confined to his bed and remained there until his death.

It is the contention of the plaintiff that, under the plain and express provisions of the policy herein sued upon, the total disability of the assured occurred while the policy was in full force and effect automatically relieved the assured from the further payment of premiums in order to continue said policy in force; that this total disability and incapacity to engage in any gainful occupation having continued until the death of the assured, the policy was in full force and effect at the date of his death, notwithstanding the quarterly premium due on the 5th day of October, 1915, was never paid. In this construction of the contract, we concur, if the English language means anything, the provision heretofore set out automatically relieved the assured from the payment of any premium after total disability to engage in any gainful occupation attached and placed it beyond the power of the defendant to declare a forfeiture for a nonpayment of the premium while such condition existed. That it did exist, and that it continued until the day of the death of assured, is not questioned here by counsel for defendant. Yet, in the plain and unambiguous provisions of this contract, this court is asked to hold as a matter of law that said policy had elapsed on the 5th day of November, 1915. It is urged that because assured paid the quarterly premium due on the 5th day of July, 1915, he waived this provision of the policy. This argument is not persuasive for the reason that assured may have entertained hopes of a speedy and permanent recovery on that date, and doubtless did, and, because the defendant had received $59.50 more than the assured was legally bounden to pay, cannot be construed into a waiver on the part of the assured of one of the most salutary provisions contained in this contract. Counsel for defendant has not cited a single authority to substantiate this contention, and we have found none that supports it. In view of the well-settled rule in this jurisdiction that, if a policy of insurance is such as to be fairly open to construction, that view will be adopted, if possible, which will sustain rather than forfeit it, we are inclined to the view that, when the assured became unable to engage in any gainful occupation, the power of revocation or forfeiture was placed beyond the power of defendant, and that the policy automatically continued in force so long as the disability attached to assured, regardless of whether or not...