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

• Citation: 254 Ky. 614
• Parties: Equitable Life Assurance Society of the United States v. Goble.
• Decision Date: 12 June 1934
• Court: United States State Supreme Court — District of Kentucky

254 Ky. 614

Equitable Life Assurance Society of the United States v. Goble.

Court of Appeals of Kentucky.

Decided March 20, 1934.

As Modified on Denial of Rehearing June 12, 1934.

1. Insurance. — In action on disability clause of group life and health policy, judgment directing payment of past and future installments when due, with provision protecting insurer if disability should cease, held not erroneous, though policy provided for payment of installments unpaid at insured's death to his beneficiary.

Judgment provided that insurer should pay certain amount monthly until it had paid 35 monthly installments, as provided by policy, or until insured's presumably permanent and total disability ceased, if it should cease prior to the time fixed by the policy for making of the 35 monthly installments; that insurer should have the rights contained and specified in policy, upon which it might proceed for purpose of determining if the disability had terminated; and that the case be continued on docket until all of the payments had been made or insured's right to receive them had terminated by reason of his recovery.

2. Judgment. — In action on disability clause of group life and health policy, verdict for insured for total amount of his certificate held "general verdict" which could serve as proper basis for judgment (Civil Code of Practice, sec. 384).

3. Judgment. — In action on disability clause of group life and health policy, where they found for insured for total amount of

certificate, court could render judgment for amount due and direct therein control of future disability installments, since question of amount of judgment was one of law (Civil Code of Practice, sec. 384).

Judgment was not, in fact, one for the present recovery of future installments, but its effect was merely to direct payment of those that had matured under policy and a declaration that future installments would be due at date fixed and that it was duty of company to pay them as they matured, if insured continued to live long enough to collect all of them and preserving rights of insurer, if insured's disability ceased, to avail itself of policy provisions, subject to court's supervision on application of either party showing change of conditions, to compel parties to comply with obligations in accordance with policy, or, if facts authorized it, to excuse insurer from paying future installments.

4. Judgment. — In action on disability clause of group policy, where jury found for insured for total amount of certificate, judgment directing payment of disability installments when falling due and retaining case on docket for future control if subsequent facts authorized company to cease payment held authorized as equivalent to order of conditional remittitur during term, and not within Code section regulating modification of judgment after term (Civil Code of Practice, sec. 518).

Drafting and presenting, by insured, of judgment in such form was equivalent to motion to remit or suspend so much of the amount fixed by verdict as concerned inclusion of future installments, and court could do so under inherent power over its judgment during term, thus preserving to insurer and insured protection respectively afforded them by policy, as it controlled payment of future monthly installments.

5. Appeal and Error; Judgment. — Court may exercise inherent power of control over judgment during term, with judicial discretion, which will not be interfered with on appeal, so long as contractual or legal rights of parties are not thereby invaded or denied.

6. Appeal and Error. — In action on group life and health policy, admission of insured's allegedly incompetent testimony that he had not recovered from heart trouble and that his condition was growing worse held harmless.

Appeal from Johnson Circuit Court.

WM. MARSHALL BULLITT, BRUCE & BULLITT, and E.B. COCHRAN for appellant.

J.L. HARRINGTON for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

This is an action on a group policy issued by the Equitable Life Assurance Society of the United States a corporation, engaged in the insurance business, and the Consolidation Coal Company, a corporation, engaged in mining and shipping coal at Van Lear, Johnson county, Ky. The latter employs a large number of men in its business.

The Consolidation Coal Company required each of its employees, under the age of 60 years, to carry insurance protecting their lives and health, as per the terms of a group policy, and deducted from their wages a sum sufficient to pay their proportionate part of the premiums due and paid under the group policy to the Equitable Life Assurance Society.

Elijah Goble was an employee of the Consolidation Coal Company, to whom certificates of insurance were issued, in accordance with the provisions of the group policy, bearing different dates, for different amounts, whereby the Equitable Life Assurance Society agreed to pay him $52.12 a month and a like amount on the same date of each succeeding month thereafter until he had been paid 35 monthly installments, totaling $1,824.24, in the event, while insured under the group policy, and before attaining the age of 60, he became "totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation or financial value, then upon receipt of due proof of such disability before the expiration of one year from the date of its commencement."

While under the age of 60, and the policy was in full force and effect and all premiums due thereunder were fully paid, about August, 1931, Goble claims he "became permanently disabled" by "heart trouble." He presented proof of his disease to the insurance company and demanded payment under the terms of the policy and in accordance therewith. It refused to recognize its obligation to him, or to make payment as demanded.

This action was instituted to recover the aggregate amount due him in accordance with the terms and provisions of the policy as evidenced by the certificates of insurance, on the ground he was "totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation or financial value."

The insurance company presented numerous defenses, which, with the plaintiff's cause of action, on the evidence offered by the parties and instructions given by the court, were submitted to a jury, resulting in a verdict in favor of Goble for the total amount of his certificates.

The judgment entered on the verdict of the jury reads:

"It is therefore ordered and adjudged by the court that the plaintiff recover from the defendant, and that the defendant pay him the sum of $52.12 per month beginning the 28th day of March, 1932, and the same amount on the same date of each succeeding month thereafter until it has paid the sum of thirty-five monthly installments or payments totaling $1,824.24, or until plaintiff's presumably permanent and total disability ceases. In the event same should cease prior to the time required to pay said total sum as provided for herein to make payment of the total of said thirty-five monthly installments together with legal interest, on all past due payments, and the defendant shall have the rights contained and specified in the policy sued on herein upon which it may proceed for the purpose of determining if such presumably permanent and total disability has terminated. For the purpose of further determining the rights of the parties hereunder, it is ordered that this case be continued on this court's docket until all of said monthly payments have been made or plaintiff's right to receive same, or any part thereof is terminated by reason of his recovery from his presumably permanent and total disability. It is further adjudged by the court that each of said monthly installments shall draw interest from its due date as therein set out until paid, and execution may issue for all installments hereafter becoming due under the terms of this judgment at and when same becomes payable as herein provided. It is further adjudged by the Court that the plaintiff recover of the defendant all his cost herein expended for which execution may issue."

The Equitable Life Assurance Society is here complaining insisting the judgment allows the insured to recover the future installments when "they are not now due; they have not yet accrued; they may become payable in the future to another person and they may never become due;" and the judgment violates sections 384 and 518, Civil Code of Practice.

The group policy provides:

"Any Disability installments remaining unpaid at the death of the employee shall be payable as they become due to the beneficiary, with the right to commute 3 1/2% interest per annum * * *. If the employee fails to furnish satisfactory proof, or if it appears at any time that such disability has been terminated, no further disability installments will be paid on account thereof * * *."

It is argued:

"This language means that if [a] the Appellee dies while h...