Davis v. Equitable Life Assur. Soc. of United States

• Decision Date: 10 March 1942
• Citation: 149 Fla. 678,6 So.2d 842
• Parties: DAVIS v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.
• Court: Florida Supreme Court

6 So.2d 842

149 Fla. 678

DAVIS v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES.

Florida Supreme Court

March 10, 1942

Donald C. McMullen & Sons, of Tampa, for plaintiff in error.

Shackleford Farrior & Shannon, of Tampa, for defendant in error.

PER CURIAM.

This is an action by the widow, who is the beneficiary of a life and disability policy of insurance, to recover monthly benefits which it is claimed accrued to the insured deceased husband during his disability before his death, though not paid because no notice of the disability was given to the insurer until after the death of the insured.

The insurance policy dated June 16, 1923, contains the following:

'(First page)

'The Equitable Life Assurance Society of the United States

Henry Baldwin Hyde Founder, July 26, 1859

Number Hereby Insures the Face

Life of Amount

3,202.300 --James G. Davis-- $5,000

(herein called the Insured)

And Agrees to Pay at Its Home Office in the City of New York

Five Thousand Dollars

(the face of this policy)

To

his wife--Jeannette H. Davis--Beneficiary

(with the right to the Insured to change the Beneficiary or assign this policy)

upon receipt of due proof of the death of the Insured, provided premiums have been duly paid and this policy is then in force and is then surrendered properly released; and in event of death from accident the society agrees to increase the amount so payable to--Ten Thousand Dollars--upon due proof that the death of the Insured resulted solely from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means, subject to the terms and conditions contained on the third page hereof. And further, if the insured becomes wholly and permanently disabled before age 60 the Society will waive subsequent premiums and pay to the Insured a disability-annuity of--Fifty Dollars--a manth, subject to the terms and conditions contained on the third page hereof. This insurance is granted in consideration of the payment in advance of Two hundred twenty and 45/100 Dollars Including Do. Ind. &amp Dis. Premiums and of the payment annually thereafter of One Hundred Seventy-six and 10/100 Dollars upon each Sixteenth day of June (Comm. June 16th 1924) until the death of the Insured. These payments include an annual premium of $5.00 for the Double Indemnity and of $11.55 for the Total and Permanent Disability provision granted under this contract. Upon any anniversary of this policy said Double Indemnity and Disability provisions may be discontinued by returning this policy to the Society for proper endorsement with a written request signed by the Insured (or assignee if any) and thereafter the payment of the premiums for such provisions shall not be required.

'The privileges and conditions stated on the subsequent pages hereof form a part of this contract as fully as if recited at length over the signatures hereto affixed

* * *

* * *

'(From third page of policy)

'Total and Permanent Disability.

'(1) Disability benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premiums, that the Insured became totally and permanently disabled by bodily injury or disease after this policy became effective and before its anniversary upon which the Insured's age at nearest birthday is 60 years, in which event the Society will grant the following benefits:----

'(a) Waive payment of all premiums payable upon this policy falling due after the receipt of such proof and during the continuance of such total and permanent Disability; and

'(b) Pay to the insured a monthly disability--annuity as stated on the face hereof; the first payment to be payable upon receipt of due proof of such Disability and subsequent payments monthly thereafter during the continuance of such total and permanent Disability.

'(NOTE:--Any Premiums so waived and any Disability--Annuity so paid shall not be deducted from any amount payable in any settlement of this policy.)

'Disability shall be deemed to be total when it is of such an extent that the Insured 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; and, further the entire and irrecoverable loss of sight of both eyes, or the severance of both hands at or above the wrists, or of both feet at or above the ankles, or of one entire hand and one entire foot, will of themselves be considered as total and permanent disability within the meaning of this provision.'

The declaration alleges that:

'* * * on June 16, 1923, in consideration of the payment in advance by James G. Davis of the sum of Two Hundred Twenty Dollars and Forty-five Cents and of the payment annually thereafter of One Hundred Seventy-six Dollars and Ten Cents upon each sixteenth day of June, commencing June 16, 1924, until the death of the insured, the defendant made and delivered to James G. Davis, its policy of insurance on the life of the said James G. Davis, and thereby insured the life of the said James G. Davis in the sum of Five Thousand Dollars; and in consideration of the payments made and to be made in the manner aforesaid, defendant also by said policy insured the said James G. Davis against becoming wholly and permanently disabled before he should reach the age of sixty, thereby agreeing that in the event the said James G. Davis should become wholly and permanently disabled before default in the payment of permiums and before reaching the age of sixty the defendant would waive all subsequent premiums and pay to the said James G. Davis a disability-annuity of Fifty Dollars a month, such waiver of payment of premiums and the payment of disability-annuity to begin on receipt of due proof of total and permanent...