Egan v. New York Life Ins. Co.

• Decision Date: 14 December 1933
• Docket Number: No. 6792.,6792.
• Citation: Egan v. New York Life Ins. Co., 67 F.2d 899 (5th Cir. 1933)
• Parties: EGAN v. NEW YORK LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F.2d 899 (1933)

EGAN v.NEW YORK LIFE INS. CO.

No. 6792.

Circuit Court of Appeals, Fifth Circuit.

December 14, 1933.

Thomas M. Stubbs, of Atlanta, Ga., for appellant.

Grover Middlebrooks, of Atlanta, Ga., for appellee.

Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.

FOSTER, Circuit Judge.

Appellant, Mrs. Mabel P. Egan, as committee of her husband, John G. Egan, brought this suit on January 20, 1932, to recover five annual disability payments of $1,000 each with interest, penalties, and attorney's fees under a policy of life insurance issued to him on September 22, 1913, in the amount of $10,000 by appellee, the New York Life Insurance Company.The suit was dismissed on demurrer.This appeal followed.

The material facts disclosed by the petition and policy annexed are these.The policy contained the following provisions:

"Waiver of Premiums.If, after this policy shall have been in force one full year and before default in the payment of any premium, the company receives due proof that the Insured before attaining the age of sixty years 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, the company shall waive payment of such premium as it thereafter becomes due during the Insured's said disability.

"Installment Payments.In addition to waiving payment of premiums as aforesaid, if such disability shall have occurred before the insured attained the age of sixty years, the company, one year after said proof of such disability, shall pay to the insured one-tenth of the face amount of the policy and a like amount in each insurance year thereafter during the continuance of such disability prior to the maturity of the policy. * * *"

The policy was lapsed on July 19, 1929, for failure of the insured to...