Bott v. Equitable Life Assur. Soc. of United States

• Decision Date: 07 May 1938
• Docket Number: 33566.
• Parties: BOTT v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Kansas Supreme Court

78 P.2d 860

147 Kan. 671

BOTT v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 33566.

Supreme Court of Kansas

May 7, 1938

Syllabus by the Court.

Where life policies unambiguously provided that on due proof of disability the insurer would waive payment of premiums and pay disability benefits, the conditions of furnishing due proof were conditions precedent to waiver of premiums or payment of benefits.

Unambiguous policies must be construed according to the terms thereof taken in their ordinary sense.

Statutes of limitations are enacted to prevent fraudulent and stale claims from springing up at great intervals of time and surprising the parties or their representatives when all the proper vouchers and evidences are lost, or the facts have become obscure from lapse of time or defective memory, death or removal of witnesses, but such statutes apply with full force also to meritorious claims.

1. The provisions of a life insurance policy waiving payment of premiums, and providing for monthly benefits upon permanent total disability and the furnishing of proof thereof examined, and held, proof of such disability constitutes a condition precedent to the waiver of such premiums or the payment of such benefits.

2. Unambiguous policies must be construed according to the terms thereof taken in their ordinary sense.

Appeal from District Court, Sedgwick County, Division No. 4; Isaac N. Williams, Judge.

Action by Florence Bott against the Equitable Life Assurance Society of the United States to recover permanent disability benefits under life policies, in which the plaintiff was named as the beneficiary, and to recover premiums paid during the time that the insured was permanently disabled. From a judgment in favor of defendant, plaintiff appeals.

Judgment affirmed.

C. L Kagey, Hal M. Black, and L. M. Kagey, all of Wichita, for appellant.

Earle W. Evans, Jos. G. Carey, W. F. Lilleston, George C Spradling, Henry V. Gott, George Stallwitz, A. M. Buzzi, and Paul J. Donaldson, all of Wichita, for appellee.

ALLEN Justice.

The defendant, the Equitable Life Assurance Society, issued and delivered in Ohio to Franklin H. Bott, who lived in that state, two policies of life insurance, with disability benefits. One policy for $1,000 was dated August 6, 1913; the second policy for $2,500 was dated November 13, 1924. The insured died April 15, 1934, and the death benefits were duly paid to the plaintiff who was the beneficiary under the policies. The present action was brought to recover the permanent disability benefits under the two policies. This is an appeal from an order sustaining a demurrer to the plaintiff's second amended petition.

In plaintiff's petition it was alleged that the insured Franklin H. Bott, had been ill for a good many years prior to his death; that three years and four months before his death the insured suffered a complete nervous breakdown, which was caused by a combination of diseases; that he collapsed at that time and was totally disabled until his death. It was further alleged: "*** Plaintiff did not know the terms of the policies and did not know where the policies were during the last three and one-half years of his life, except that plaintiff had been advised by the agent of the company one G. W. Durham, to whom she paid premiums, that the policies were with the defendant company. Plaintiff was ignorant of the provisions in said policies for the payment of disability on the larger one, and the waiver of premiums in both policies, and her husband, during the entire period of his illness, was not mentally competent to describe said policies or their terms to plaintiff. Plaintiff was informed by the said defendant company as to the amounts of premiums due and she paid said premiums from the time of her husband's collapse until the date of his death to said G. W. Durham, agent of the defendant company. *** Since her husband had been unable, because of his illness and mental condition, as aforesaid, even to inform plaintiff that he had such a policy and that it contained such provisions, plaintiff was unable to make such proof during his lifetime, and because of the impossibility of making proof during the lifetime of her husband and of the further fact that the company took up the policies and had them in its possession at the time of her husband's death and only paid her the amount that she then thought to be due and was represented to be due, it was physically impossible for this plaintiff to make any proof of claim. ***"

The policy for $1,000 provided: "If the Insured, before attaining the age of sixty years and after payment of premiums for at least one full year and before default in the payment of any subsequent premium, shall furnish due proof to the Society that he has 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, and that such disability has then existed for not less than sixty days, the Society will waive payment of the premiums thereafter becoming due under this policy."

The second policy for $2,500 provided:

"(I) Disability benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premium, that the Insured became totally and permanently disabled by bodily injury or disease after this policy became effective and before its anniversary upon which the Insured's age at nearest birthday is 60 years, in which event the Society will grant the following benefits:--

"(a) Waive payment of all premiums payable upon this policy falling due after the receipt of such proof and during the continuance of such total and permanent Disability; and

"(b) Pay to the Insured a monthly disability-annuity as stated on the face hereof; the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability."

Plaintiff asks judgment for the premiums paid on the $1,000 policy during the disability of the insured, amounting to $118.16; also for the premiums paid on the $2,500 policy during the same period, amounting to $283.60; also for the monthly benefits of $25 per month on the $2,500 policy for the same period, amounting to $1,000, with interest on the several items.

Both policies were kept in full force and effect until the death of the insured. Although the insured lived three years and four months after his alleged collapse it is admitted that neither the insured nor any person for him furnished proof to the defendant company of such total disability.

The chief question presented is whether the provisions in the policies above quoted as to furnishing of proof of disability are conditions precedent to the waiver of the payment of the premiums on both policies, and to the payment of disability benefits on the larger policy.

It is asserted that there was an impossibility of performance on the part of the insured not only because of his disability but because the policies were in the possession of the defendant company. It is alleged that plaintiff never saw the policies while the insured was living and was unable to obtain copies thereof until about June 1, 1936, which was nearly two years after the death of the insured. It is not claimed, however, that the plaintiff was unaware of the existence of the policies. In fact, as alleged in the petition, she paid the premiums on the policies after the date of insured's disability. Neither is there any allegation in the petition that the plaintiff who was the beneficiary under the policies made any effort or used any diligence during the period of...