Carter v. Aetna Life Ins. Co. of Hartford, Conn.

• Decision Date: 01 March 1938
• Citation: Carter v. Aetna Life Ins. Co. of Hartford, Conn., 272 Ky. 392, 114 S.W.2d 496 (Ky. Ct. App. 1938)
• Parties: CARTER v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.
• Court: Kentucky Court of Appeals

114 S.W.2d 496

272 Ky. 392

CARTER v. ÆTNA LIFE INS. CO. OF HARTFORD, CONN.

Court of Appeals of Kentucky

March 1, 1938

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action for disability payments under group policy insuring employees against permanent disability by Walter Carter against the Ætna Life Insurance Company of Hartford, Connecticut.After hearing the opening statements of counsel for each side, the court of its own motion instructed the jury to find for the insurance company, and plaintiff appeals.

Reversed and remanded for new trial.

H. O Williams and R. Todd Hays, both of Louisville, for appellant.

Crawford Middleton, Milner & Seelbach, of Louisville, for appellee.

CLAY Justice.

The Ætna Life Insurance Company of Hartford, Conn., issued to the Standard Sanitary Manufacturing Company, of Louisville, a group policy insuring its employees against total and permanent disability, and on June 18, 1926, a certificate of insurance was issued to Walter Carter, who had been in the company's employ for a number of years.The master policy, subject to which the certificate was issued, contained a provision by which the Insurance Company obligated itself to pay to the employee the amount of insurance in force upon his life at the time such disability commenced in lieu of all other benefits, "upon receipt at the home office of the Company during the continuance of insurance on such employee of satisfactory evidence of such disability."The policy also provided: "This insurance will be terminated whenever said employee, for any reason whatsoever, ceases to be in the employ of said employer."

The Insurance Company defended on the ground that Carter voluntarily left the employ of the Manufacturing Company on May 11, 1927, that the insurance issued to him was cancelled on May 31, 1927, and that no claim was presented and no evidence of disability was received by the home office of the Insurance Company during the continuance of the insurance.The defenses were put in issue by reply.At the trial a jury was impaneled, and the case was stated to the jury by counsel for each side.Being of the opinion that the evidence which counsel for plaintiff offered to produce was not sufficient to show that satisfactory evidence of plaintiff's disability was received at the home office during the continuance of the insurance, the court on its own motion instructed the jury to find for the Insurance Company.Carter appeals.

There is no objection to the practice of giving a peremptory instruction after the opening statement of counsel.Falls City Plumbing Supply Company v. Jake's Foundry Company,223 Ky. 420, 3 S.W.2d 1071.The reason for the rule is apparent.If counsel admits that he is unable to prove facts essential to a recovery, or to disprove facts fatal to a recovery, there is no need of going to the trouble and expense of hearing evidence which, it is known in advance, will be insufficient.Of course the trial court should be careful to see that counsel is not the victim of inadvertence or misunderstanding, but with full appreciation of the situation is unable to meet it.The practice was approved by the Supreme Court of the United States in Oscanyan v. Winchester Repeating Arms Company,103 U.S. 261, 264, 26 L.Ed. 539, and the proper method of procedure outlined as follows: "Of course, in all such proceedings nothing should be taken, without full consideration, against the party making the statement or admission.He should be allowed to explain and qualify it, so far as the truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be...