Cates v. New York Life Ins. Co.

• Decision Date: 05 February 1935
• Docket Number: 4917
• Citation: 159 So. 172
• Court: Court of Appeal of Louisiana — District of US
• Parties: CATES v. NEW YORK LIFE INS. CO. (TUCKER, Intervener)

159 So. 172

CATES v. NEW YORK LIFE INS. CO. (TUCKER, Intervener)

No. 4917

Court of Appeal of Louisiana, Second Circuit.

February 5, 1935

Montgomery & Montgomery, of New Orleans, for appellant.

Barksdale Bullock, Warren, Clark & Van Hook, of Shreveport, for appellees.

OPINION

TALIAFERRO Judge.

In the year 1929 defendant issued to plaintiff a policy of insurance on his life for $ 5,000, containing the following disability provisions, viz.:

"Disability shall be considered total whenever the Insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit, provided such disability occurred after the insurance under this Policy took effect and before the anniversary of the Policy on which the Insured's age at nearest birthday is sixty.

"Upon receipt at the Company's Home Office, before default in payment of premium, of due proof that the Insured is totally disabled as above defined, and will be continuously so totally disabled for life, or if the proof submitted is not conclusive as to the permanency of such disability, but establishes that the Insured is, and for a period of not less than three consecutive months immediately preceding receipt of proof has been, totally disabled as above defined, the following benefits will be granted:

"(a) Waiver of Premium. The Company will waive the payment of any premium falling due during the period of continuous total disability, the premium waived to be the annual, semi-annual or quarterly premium according to the mode of payment in effect when disability occurred.

"(b) Income Payments. The Company will pay to the Insured the monthly income stated on the first page hereof ($ 10 per $ 1,000 of the face of this Policy) for each completed month from the commencement of and during the period of continuous total disability. If disability results from insanity payment will be made to the beneficiary in lieu of the Insured."

The insured, plaintiff, became disabled from following diseases, viz.: Chronic interstitial nephritis (Bright's disease); arteriola sclerosis (hardening of the smaller arteries); malignant hypertension (high blood pressure); cardiac hypertrophy and dilatation (thickening of the muscles of and enlargement of the heart, superinduced by high blood pressure), and brings this suit to recover the sum of $ 50 per month, beginning June 9, 1933, and to continue balance of his life. He alleges that his disability is total and permanent, and prevents him from pursuing any occupation for remuneration or profit; that the diseases producing said disability are incurable; that in May, 1933, he furnished the proof of his condition to defendant, as required by the policy, which was rejected, and requested payments refused by it.

Defendant excepted to the suit on the ground and for the reason that plaintiff had, on July 24, 1929, assigned the policy to Edna Jones Tucker, and he therefore could not stand in judgment therein. Mrs. Tucker then intervened in the suit, asserting that said policy, with all the dividends, benefits, and advantages to be had or derived therefrom, subject to the conditions of the policy, had been assigned to her. She adopts the allegations of plaintiff's petition, and claimed for herself the amount for which he sued.

Defendant admits issuance of the policy, but in all other respects denies the allegations of plaintiff's petition. It also denies the allegations of the petition of intervener, except the assignment of the policy to her.

This case was consolidated with that of this same plaintiff against Jefferson Standard Life Insurance Company (159 So. 168), No. 4896 on the docket of this court. The same note of evidence was used in each case.

There was judgment for plaintiff and intervener as prayed for by them. Defendant appealed.

Under the terms of the policy sued on, according to the verbiage thereof, before plaintiff is entitled to recover, he must prove (1) that from the disease he now suffers, he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit; and (2) that such total disability will continue the remainder of his life; or (3) if proof of the permanency of his disability is inconclusive, recovery may be had if such proof establishes that insured is, and for a period not less than three consecutive months immediately preceding receipt of proof has been, totally disabled as above defined.

While the language of this policy is not precisely the same as that employed in the policy sued on in said case No. 4896, yet in meaning, substance, and effect it is the same. The reasoning, conclusions, findings on the facts, and authorities cited in support of our judgment in that case are entirely pertinent to the present case. We quote that opinion, in so far as necessary, and adopt it in and for the present case, to wit:

"Plaintiff was sworn as a witness in his own behalf. After he had testified rather briefly in response to questions by his counsel and the court, he was consigned to defendant's counsel for cross-examination. They asked no questions. He was excused. Other witnesses then testified. When plaintiff closed his case in chief and his counsel announced that he rested, defendant, at the beginning of introduction of its evidence, called plaintiff for cross-examination. On objection from plaintiff's counsel that the right of cross-examination had been tendered and not availed of, the request of defendant was refused. It did not cross-examine plaintiff at all. To this ruling defendant excepted, and the record contains a formal bill of exception incorporating the facts of the matter. It is defendant's contention that the right to call plaintiff as under cross-examination is guaranteed to it by Act No. 126 of 1908. This act says "Be it enacted by the General Assembly of the State of Louisiana, That in all causes pending and untried or to be hereafter instituted in any court of this State, the parties litigant shall be entitled to examine their opponent, as under cross-examination, and in such event the parties thus examining opponents shall not be held as vouching to the Court for the credibility of the opponents so placed upon the stand, or as estopped from impeaching, in any lawful way, the testimony given as herein provided for.'

"It will be observed that under the latter part of this law a defendant is fully protected against certain results that would have been visited upon him prior to passage of this law, if he had sworn plaintiff as a witness in his (defendant's) behalf and the testimony given by him had been untrue or in other respects harmful to defendant's case. By this act, defendant, when he calls plaintiff to testify, is not held to have vouched for his credibility, and is not estopped from traversing his testimony when given under such circumstances. It is our opinion that this act may be availed of by the defendant in a pending suit only when the plaintiff has not taken the stand as a witness in his own behalf. When he has testified for himself, defendant may or may not cross-examine him, but, if he does so, he is not bound by the answers elicited thereby, nor is his credibility to any extent vouched for by defendant because of such cross-examination. In the present case, we do not see the application of the 1908 act. The situation is the same as though the act had never been adopted. Plaintiff, when he tendered himself as a witness, was of the same status as any other witness sworn in the case. At the proper time defendant declined to cross-examine him. Out of the regular order of trial procedure, defendant undertook to do that which he had declined to do in regular order. The proposition addressed itself to the court's discretion. Had defendant's request been granted, the testimony adduced thereunder would be properly before us, but, since the request was refused, we do not think the ruling can be said to amount to reversible error. If defendant's contention is well founded, then it could have deferred cross-examining all of plaintiff's...