Clarke v. Equitable Life Assur. Soc. of U.S.

• Citation: 100 Colo. 490,68 P.2d 541
• Decision Date: 10 May 1937
• Docket Number: 13964.
• Parties: CLARKE v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: Supreme Court of Colorado

68 P.2d 541

100 Colo. 490

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

No. 13964.

Supreme Court of Colorado

May 10, 1937

In Department.

Error to District Court, City and County of Denver; James C Starkweather, Judge.

Action by Alice M. Clarke against the Equitable Life Assurance Society of the United States. Judgment was entered, and the plaintiff brings error.

Affirmed.

Con K O'Byrne and William H. Scofield, both of Denver, for plaintiff in error.

Percy A. Robinson and Carl C. Hearnsberger, both of Denver, for defendant in error.

BURKE Chief Justice.

Plaintiff in error is hereinafter referred to as Clarke and defendant in error as the company.

Clarke held an insurance policy in the company which provided that in case of total, permanent disability, she would be paid $50 per month. She was disabled as the result of an auto accident. The extent of that disability was not immediately apparent and she continued to pay premiums. Eventually she sued to recover these and monthly payments from the date of injury. To her complaint the company demurred for want of facts. That demurrer was sustained, she elected to stand came here on error from a judgment of dismissal, and secured a reversal. Clarke v. Equitable L. A. Society, 96 Colo. 134, 39 P.2d 785.

Answer and replication and trial to a jury followed. At the close of the evidence the company moved for a directed verdict giving Clarke one month's benefit with interest and costs. That motion was sustained over Clarke's objection, and judgment entered accordingly. To review that judgment the present writ is prosecuted. We need not separately examine the eleven assignments. They present the questions of Clarke's right to recover from date of the accident, her right to recover ad interim premiums, and the correctness of an order striking portions of her amended complaint.

Clarke was injured June 23, 1930. Aside from her physical injuries the shock of the accident caused development of goitre. She returned to work, inefficiently but for full compensation, to Cotober 10, then went to a hospital in November and had the goitre removed. By February 2, 1931, she had fully recovered. Premium payments were $50 each, due quarterly, and she paid those falling on September 6 and December 6. The last was transmitted by letter December 30, at which time she advised the company that she had been 'sick since October 12,' wished to claim for 'total disability benefit,' and requested necessary blanks. These were filled out and filed January 16, 1931. Therein she fixed the last date on which she did any work as October 10. It appears that her preliminary proof reached the company January 2, and it admits liability for compensation from that date to February 2.

Provisions of the policy directly applicable are: 'If the annuitant becomes wholly and permanently disabled * * * the society will waive subsequent premiums and pay * * * fifty dollars a month subject to the following terms and conditions: Disability benefits * * * shall be effective upon receipt of due proof, Before default in the payment of premium, that the annuitant became totally and permanently disabled * * * in which event the society will grant the following benefits: Waive payment of all premiums * * * falling due after the receipt of such proof * * * the first monthly payment to be payable upon receipt of due proof of such disability * * *. Disability shall be deemed to be Total when it is of such an extent that the annuitant is prevented thereby from engaging in any occupation or performing any work for compensation of financial value, and such Total Disability shall be presumed to be Permanent when it is present and has existed continuously for not less than three months;'

It will be observed that nothing was due under this contract until Clarke became wholly and permanently disabled. By her own admissions that never happened. She was wholly disabled from October 12 to February 2, but the admitted fact of...