Columbian Nat. Life Ins. Co. v. Zammer

• Decision Date: 14 January 1936
• Docket Number: 25822.
• Parties: COLUMBIAN NAT. LIFE INS. CO. v. ZAMMER.
• Court: Oklahoma Supreme Court

62 P.2d 63

178 Okla. 207, 1936 OK 16

COLUMBIAN NAT. LIFE INS. CO. v. ZAMMER.

No. 25822.

Supreme Court of Oklahoma

January 14, 1936

Rehearing Denied Oct. 13, 1936.

Application for Leave to File Second Petition for Rehearing Denied Nov 17, 1936.

Syllabus by the Court.

1. Where a policy of insurance, for an additional consideration provides that, "The premium will be waived, where before default of premium, the company receives due proof, that the insured has become so disabled as to be permanently continuously and wholly prevented for life from pursuing any and all gainful occupations," held the time of furnishing of proof is not mandatory, and where it is shown that proof was furnished as soon as it was possible to do so the insured, being wholly incapacitated and unable to furnish such proof, is excused from giving such proof during the time he is incapacitated and unable to furnish the same.

2. Upon the happening of the event which would entitle the insured to a waiver of premiums under the waiver of premium clause, the insured is automatically relieved of payment of further premiums, time not being of the essence of such agreement, and such agreement not providing for default in the event such proof is not given; and where the insured is wholly unable by reason of such disability to furnish such proof, the furnishing of such proof within a reasonable time is held to be sufficient.

Appeal from District Court, Creek County; Gaylord R. Wilcox, Judge.

Action by Nellie Zammer, administratrix of the estate of Nemmer L. Zammer, deceased, against the Columbian National Life Insurance Company. Judgment in favor of the plaintiff, and the defendant appeals.

Affirmed.

Hulette F. Aby, William F. Tucker, and Frank Settle, all of Tulsa, for plaintiff in error.

R. L. Suddath, of Tulsa, for defendant in error.

PER CURIAM.

This case was tried by the court on an agreed statement showing substantially the following facts: That the insured was issued a policy for $2,000 on June 3, 1915, naming his nephew as beneficiary. The policy, for an additional consideration provided for a waiver of premiums, as follows: "If, after this policy has been in force one full year before default in the payment of any subsequent premium, the company receives due proof that the insured, prior to attaining the age of 60, has become so disabled by bodily injuries or disease as to be permanently, continuously and wholly prevented for life from pursuing any and all gainful occupations, it will, by forwarding official receipt therefor, waive payment of the premiums thereafter due under this policy during the continuance of such disability and the values in the above Table shall increase in the same manner as if the premiums were paid by the insured."

The premiums were paid on said policy annually and according to its terms up to and including the year of 1927, but the annual premium due June 3, 1928, was not paid or accepted; the insured suffered from an affliction causing him to become totally and permanently disabled, both mentally and physically, from about the 15th day of April, 1928, so that he was unable to transact any business or understand any business transaction whatever from that time until the time of his death, December 21, 1928, at which time he was under the age of sixty years; at the time of the death of the insured, the policy had been mislaid and not being found until September, 1931, when an agent of the company inquired as to the beneficiary under the policy, stating that there was $164 paid-up insurance under the policy due to the beneficiary. The beneficiary died in 1930, leaving his widow and his infant daughter as next of kin and only heirs. The insurance company tendered the paid-up insurance to the heirs of the beneficiary. At the time of the insured's death, there was due to the defendant, by reason of a loan on the policy, $946.36, and on October 6, 1928, the defendant returned to the insured a check for $51.96 in unearned interest, said check was indorsed with the name of the insured and cashed by somebody, there being no evidence that the insured had any knowledge of this check, and it appearing from the stipulation that his physical condition was such that he was incapable of having any knowledge of the transaction.

It was admitted in the stipulation that if the policy did not lapse on June 3, 1928, for failure of premiums, or for any other cause, then the plaintiff, as administratrix of the estate of the beneficiary would be entitled to recover $1,053.64 with interest at 6 per cent. from October 26, 1931, the date proof of death was furnished, together with the costs, but that if the policy was not in full force by reason of the failure to furnish proof of the disability (the defendant contending that it was mandatory under the terms of the waiver of premium clause that it receive due proof of this disability before default in the payment of premiums), the plaintiff would only be entitled to recover the sum of $164, without interest, and the costs to be taxed to the plaintiff.

The lower court determined as a matter of law that the plaintiff was entitled to recover judgment from the defendant in the sum of $1,053.64, with 6 per cent. interest thereon from October 26, 1931.

The legal issue in this case is whether or not the total incapacity or inability of the insured to give notice to the company that he was so disabled by bodily injuries or disease as to be permanently, continuously, and wholly prevented for life from pursuing any gainful occupation, during the time his insurance was in full force and effect, is excusable by reason of such incapacity, or is the provision of the policy of giving notice to the company mandatory.

We have examined the authorities cited and relied upon by the defendant, and find that same are cases where the...