Clarkson v. New York Life Ins. Co.

• Decision Date: 17 January 1933
• Docket Number: No. 720.,720.
• Citation: 4 F. Supp. 791
• Parties: CLARKSON v. NEW YORK LIFE INS. CO.
• Court: U.S. District Court — Southern District of Florida

4 F. Supp. 791

CLARKSON v. NEW YORK LIFE INS. CO.

No. 720.

District Court, S. D. Florida, Jacksonville Division.

January 17, 1933.

Marks, Marks, Holt, Gray & Yates, of Jacksonville, Fla., for complainant.

Doggett, McCollum, Howell & Doggett, of Jacksonville, Fla., for defendant.

STRUM, District Judge.

Plaintiff sues in equity to restrain the threatened cancellation of six insurance policies issued by defendant upon plaintiff's life, and to recover certain disability benefits under the policies.

One policy contains the provision that "whenever the company receives due proof * * * that the insured * * * has become wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days, * * *" then certain disability benefits will be paid and further premiums waived.

The other five policies contain the provision that upon receipt by the company "* * * of due proof that the insured is totally and permanently disabled * * *" certain disability benefits will be paid and future premiums waived; that "disability shall be deemed total whenever the insured is wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit" and shall be presumed to be permanent "whenever the insured will presumably be so totally disabled for life" or "so totally disabled for not less than three consecutive months immediately preceding receipt (by the company) of proof thereof."

The controlling issue is one of fact, — whether or not the insured, during the life of the policies, became wholly (or totally) and permanently disabled within the meaning of the policies.

Plaintiff asserts that he became so disabled about April, 1928, and has remained so. Defendant denies that plaintiff was ever so disabled.

For a substantial number of years prior to April, 1928, plaintiff had been secretary and treasurer of several lumber companies, having charge of the financial and accounting affairs of the business. He was an office or clerical man. Generally speaking, and with certain unimportant exceptions, plaintiff's health had been good all his life until about 1926, when he suffered a severe attack of fever, since which he claims not to have been strong or well, and claims to have become extremely nervous, sometimes hysterical. Plaintiff resigned his position on April 1, 1928, assigning ill health as the cause. Soon thereafter he submitted his claim for disability benefits here sued for. Plaintiff has since followed at least three gainful occupations at intervals, but not continuously. One of them, followed for about eight and a half months during the year 1930, was quite similar, though not identical, with his former occupation with the lumber companies. It is significant that the lumber companies with which plaintiff was associated for many years prior to 1928 suffered financial difficulties, and practically suspended business about the time plaintiff resigned, at which time plaintiff acquired from the lumber companies five of the policies here sued upon, which had theretofore been taken out and the premiums thereon paid by said companies; only one of the policies having been originally issued direct to the insured. Very shortly after his resignation aforesaid, plaintiff consulted a physician in Jacksonville for the declared purpose, so the physician testified without contradiction, of ascertaining whether plaintiff was totally and permanently disabled within the terms of these policies so as to claim the disability benefits. This physician, after a thorough examination, advised plaintiff that he was not disabled, that he could follow his vocation, and that he could and should go back to work and forget about his insurance.

There is voluminous testimony, both expert and lay, as to plaintiff's physical and mental condition. It is impracticable to do more than recapitulate it within reasonable bounds.

There is credible evidence that plaintiff apparently has some ailment of the gastrointestinal tract and possibly a recurring, but not chronic, thyroid ailment; that he manifested symptoms of psychoneurosis, both functional and organic, with episodes resembling psychosis or borderline psychopathic tendencies; it being the opinion of some of the physicians that plaintiff's nervous symptoms are the result of the underlying organic ailments mentioned, or some of them, and that such mental symptoms will continue until the...