Bozich v. Metropolitan Life Ins. Co.
| Decision Date | 11 July 1942 |
| Docket Number | 35522. |
| Citation | 155 Kan. 573,127 P.2d 499 |
| Parties | BOZICH v. METROPOLITAN LIFE INS. CO. |
| Court | Kansas Supreme Court |
Rehearing Denied Sept. 14, 1942.
Syllabus by the Court
Where on March, 15, trial court sustained plaintiff's motion for judgment on jury's special findings which trial court had approved, but no money judgment was then entered, and on November 29 trial court made its own findings of fact and conclusions of law, and three days thereafter defendant filed a motion for new trial on all statutory grounds, and a motion to set aside trial court's findings of fact and conclusions of law, and on December 13 those motions were overruled, and judgment was entered for plaintiff, and on December 24 notice of appeal was duly served and filed appeal was taken in time to entitle defendant to an all-inclusive review. Gen.St.Supp.1941, 60-3314a.
In action on life policy having provision that insurer would waive payment of premiums while insured was wholly and permanently disabled, evidence was sufficient, as against a demurrer, to establish that insured was wholly and permanently disabled so as to prevent her from performing any work for compensation or profit for the last 26 months of her life.
Where life policy provided that, on receipt of due proof of insured's total disability and that insured would thereby be permanently, continuously, and wholly prevented from performing any work for compensation or profit, insurer would waive payment of each premium during insured's disability, a prerequisite to such privilege was that due proof of insured's disability be received by the insurer.
In action on life policy having provision that insurer would waive payment of premiums while insured was wholly and permanently disabled on receipt of due proof of insured's total disability, evidence was insufficient to sustain a finding that insurer's soliciting and collecting agent knew of insured's alleged total and permanent disability and that it was the duty of agent to know insured's physical disability and report it to insurer, so as to dispense with requirement of due proof as a condition to waiver of premium. Gen.St.1935, 40-239, 40-240.
Where the only evidence as to the scope of insurance agent's authority was that he was a soliciting and collecting agent his authority never went further than that conferred on him in writing by the insurer, nor beyond the scope of the license issued to him by the Commissioner of Insurance. Gen.St. 1935, 40-239, 40-240.
Statement on back of life policy that it was not necessary to employ an attorney or any other person to collect insurance under the policy, or to secure any of the benefits it provided, was no part of the insurance contract.
Statement on back of life policy that it was not necessary to employ an attorney or any other person to collect the insurance under the policy was not susceptible of a construction that insurer's soliciting and collecting agent had been assigned to the duty of taking notice of the insured's physical disability which would entitle her to a waiver of the semi-annual premiums on the policy nor the duty to report the disability to the insurer.
Statement in life policy that it was not necessary to employ an attorney or any other person to collect insurance under the policy was not susceptible of a construction that insurer's soliciting and collecting agent was to serve as attorney or adviser to insured, nor did it excuse the insured from giving notice to insurer touching insured's disability so as to entitle insured to a waiver of the premiums on the policy as they became due.
Where, by the plain terms of life policy, the insured was not entitled to a waiver of payment of premiums because of total physical disability unless she furnished insurer with proof of that fact, insured's ignorance as to the necessity of submitting such proof because of her inability to read English did not excuse failure to furnish insurer with proof of disability.
In an equitable action on a life insurance policy where the defense was that it had been forfeited for nonpayment of premiums after repeated loans had exhausted all its paid-up insurance value except ten dollars, liability for which sum was admitted, the record examined and held:
1. Plaintiff's objections to an all-inclusive review of the errors assigned by defendant considered and not sustained.
2. As against a demurrer thereto, the evidence was sufficient to prove that the insured was totally and permanently disabled so as to prevent her from performing any work for compensation or profit for the last twenty-six months of her life.
3. Where the policy of life insurance provided that upon receipt of due proof of the insured's total disability and that she would thereby be permanently, continuously andwholly prevented from performing any work for compensation or profit, the insurer would waive payment of each premium as it thereafter became due during such insured's disability, a prerequisite to such privilege was that due proof of the insured's disability be received by the insurance company.
4. There was no competent evidence to support the finding of fact that the insurer's soliciting and collecting agent knew of the insured's disability nor any competent evidence to support the finding that it was his duty to know her physical disability and report it to the defendant company.
5. On the back of the policy were certain printed admonitions and advice to the policy holder, one of which read: "It is not necessary to employ an attorney or any other person to collect the insurance under this Policy, or to secure any of the benefits it provides." Held, this statement was no part of the insurance contract, and it was not susceptible of a construction that defendant's soliciting and collection agent had been assigned to the duty of taking notice of the policy holder's physical disability which would entitle her to a waiver of the semi-annual premiums on the policy, nor the duty to report the same to the insurance company; nor were the recitals of the notice susceptible of a construction that the soliciting and collecting agent of the company was to serve as attorney or adviser to the insured, nor did it excuse the insured from giving notice to the company touching her disability so as to entitle her to a waiver of the premiums on the policy as they became due.
6. Under the terms of the policy sued on, the insured was not entitled to a waiver of payment of premiums for total physical disability when she had not furnished the insurance company with proof of that fact; and her plea of ignorance as to the necessity of submitting such proof--the conditions of waiver being plainly stated in the policy-- did not supply the want of proof.
Appeal from District Court, Wyandotte County, Division No. 1; Edward L. Fischer, Judge.
Action by Marko Bozich against the Metropolitan Life Insurance Company to recover on a life policy. From an adverse judgment, the defendant appeals.
Judgment reversed with instructions to enter judgment for defendant.
Patrick B. McAnany, of Kansas City (Edwin S. McAnany, Thomas M. Van Cleave, Willard L. Phillips, Bernhard W. Alden, and Thomas M. Van Cleave, Jr., all of Kansas City, on the brief), for appellant.
C. D. Bruce, of Kansas City, for appellee.
This was an action on a policy of insurance for $1,000 which defendant issued on the life of Mrs. Helen Bozich in 1922. The named beneficiary was Marko Bozich, husband of the insured.
The consideration for the policy was the payment of semi-annual premiums of $14.44 payable in advance. One of the privileges of the policy-holder was that after payments of premiums for three years defendant would loan on the policy an amount up to its cash surrender value. If the loan and unpaid interest thereon were not within the cash surrender value, the policy would become void after one month's notice. Paragraph 5, sub-par. 3, provided that if default in payment of any premium should continue for three months and if the policy were not returned for its cash surrender value, it would be continued for a reduced amount of paid up insurance.
Another provision of the policy was Paragraph 10, which, in part, read thus:
Other provisions of the policy read:
On the back of the policy was certain printed matter under this caption:
"Notice to Policy-Holder--Please Read Your Policy Promptly Upon Its Receipt."
This notice admonished the policy-holder to notify the company of any change in his address; to give his policy number when writing to the company; to remit payment of premiums by check draft, or money order payable to the order of the company. This notice also instructed the policy-holder touching the time and place of holding its elections of directors and the policy-holder's privilege of...
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