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

• Decision Date: 04 June 1935
• Citation: Equitable Life Assur. Soc. of U.S. v. Reynolds, 259 Ky. 504, 82 S.W.2d 509 (Ky. 1935)
• Parties: Equitable Life Assurance Society of United States v. Reynolds.
• Court: Supreme Court of Kentucky

259 Ky. 504

Equitable Life Assurance Society of United States v. Reynolds.

Court of Appeals of Kentucky.

Decided February 12, 1935.

As Modified on Denial of Rehearing June 4, 1935.

1. Abatement and Revival. — In action on group policy certificates, objection that suit was instituted before benefits accrued was matter of abatement, which insurer waived by failure to plead.

2. Pleading. — In action on group policy certificates, insurer could not complain that group policy was not introduced in evidence or its absence explained, where petition stated facts sufficient to constitute cause of action on life policy and insurer joined issue and proceeded to participate in trial.

3. Appeal and Error. — On appeal from judgment for insured on group policy certificates, objection that action was based on certificates and not on policy, which was neither raised in nor passed upon by trial court, would not be considered.

4. Pleading. — Insurer's failure to present in trial court objection that action was based on certificates instead of group policy was waiver of insurer's right after trial on merits or on appeal to raise such objection.

5. Insurance. — In action on group policy certificates, whether insured became wholly disabled so that he would be wholly and presumably permanently prevented thereby for life from pursuing any gainful occupation held for jury.

6. Insurance. — Insured's testimony to effect that he was afflicted with heart trouble before he ceased to work held to establish that he had become totally and permanently disabled within group policy certificates before he was laid off from work, since it was not imperative that causal connection between his ailment before he was laid off and thereafter should be shown by expert testimony.

7. Evidence. — Medical testimony held to show that insured became totally and permanently disabled within group policy certificates before insured was laid off from work.

8. Evidence. — Where insured and his physician testified that insured became totally and permanently disabled within group policy certificates before insured was laid off from work, insurer's failure to call employer's physician or to explain failure to call him warranted inference that such physician would corroborate testimony of insured and his physician.

9. Evidence. — That X-ray picture of heart was not taken according to text-book rules merely affected weight of picture as evidence and of testimony of physician taking picture based thereon, but did not render picture or testimony incompetent.

10. Appeal and Error. — Alleged error in that hypothetical question relating to tuberculosis did not correctly reflect evidence held immaterial, where no effort was made to establish that insured had tuberculosis and no recovery was sought because of such disease, and hypothetical question was asked merely to test ability of witness as an expert.

11. Pleading. — In action on group policy certificates, amendment of petition after jury's verdict held properly permitted, where ah that jury found was that insured was totally and permanently disabled, and insurer and insured had previously agreed as to amount recoverable if insured was totally and permanently disabled (Civil Code of Practice, sec. 134).

12. Pleading. — Court has wide discretion when determining right of party to amend his pleadings, but amendment must be in furtherance of justice and must not substantially change claim of defense (Civil Code of Practice, sec. 134).

13. Appeal and Error. — Party cannot maintain in Court of Appeals theory of case opposite to that which he presented and relied upon in trial court, and it is reviewing court's duty to determine case presented and tried in the lower court.

14. Appeal and Error. — In action on group policy certificates, admission of statement of insurer's physician, who could not be obtained to testify on recross-examination, which statement was same as physician's statement on witness stand, held not prejudicial error, even if insurer did not withdraw objection to introduction of statement by agreement that statement might be read without physician's presence, subject to objection as to relevancy, competency, and materiality.

Appeal from Boyd Circuit Court.

WILLIAM MARSHALL BULLITT, EUGENE B. COCHRAN and BRUCE & BULLITT for appellants.

JOHN T. DIEDERICH for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

This is an appeal from a judgment entered on the verdict of the jury for the amount of certificates of the Equitable Life Assurance Society of United States, issued to Emmett Reynolds, in accordance with a group policy issued by the Equitable to the American Rolling Mill Company, Ashland, Ky.

The Equitable summarizes its grounds of reversal thus: "Reynolds' action is premature because he filed this suit before the benefits were payable;" he "cannot recover on the individual certificates;" "his action is on the group policy and the group policy must be introduced as evidence or its absence explained;" "there was no evidence that while Reynolds was insured (prior to May 3rd, 1934), he became `wholly disabled,' so that he would be `wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupations;'" his "medical evidence refers only to the condition of his health after his employment terminated; it does not disclose what that condition was before Reynolds' employment terminated;" "the X-ray picture and the opinion based on it were incompetent;" "there is no evidence * * * that Dr. Rice advised Reynolds not to work;" "the hypothetical question by which Reynolds sought to prove tuberculosis did not correctly reflect the evidence and embraces facts which were not proven;" "the court incorrectly defined the meaning of the phrase `presumably permanent;'" it "erroneously permitted Reynolds, after the verdict had been returned, to amend his petition setting up a new cause of action."

In our consideration of the case we shall confine ourselves to these grounds, considering all others, if any, waived by the Equitable. We shall consider them in the order in which we have stated them.

The suggestion that this action is premature is as it appears from the record, here presented for the first time. The objection that the suit was instituted before the benefits accrued was a matter of abatement which the Equitable waived by a failure to plead. Kenton Ins. Co. v. Downs, 90 Ky. 236, 13 S.W. 882, 12 Ky. Law Rep. 115; Nickels v. Board of Councilmen of City of Frankfort, 111 S.W. 706, 33 Ky. Law Rep. 918. The argument that Reynolds' cause of action is predicated on the individual certificates and not on the group policy, and that the latter was not introduced as evidence nor its absence explained, is presented in this court for the first time. The petition states facts sufficient to constitute a cause of action on a policy of life insurance, and bases the same on the certificates, which were the obligations of the Equitable on which a recovery was sought. Its allegations were denied by answer without objection; no demurrer was filed or a motion entered to require the group policy to be presented as a foundation of his cause of action. Instead of availing itself of its right to object to Reynolds seeking to recover on the individual certificates, it elected to join issue and proceeded to participate in the trial.

The objection to the action being based on the certificates was neither raised in nor passed upon by the trial court. We cannot consider a question or an issue neither raised in nor passed upon by the trial court. Bennett v. Knott (Ky.) 112 S.W. 849; Benefit Ass'n of Railway Employees v. Secrest, 239 Ky. 400, 39 S.W. (2d) 682; Sheeran, Bro. & Co. v. Tucker, 166 Ky. 483, 179 S.W. 426; Marshall's Adm'r v. Corinth Bank & Trust Co., 226 Ky. 361, 10 S.W. (2d) 1076; Sargent v. Whitfield & Co., 226 Ky. 757, 11 S.W. (2d) 926; Bowling's Adm'x v. Davis, 103 Ky. 187, 44 S.W. 643, 45 S.W. 77, 19 Ky. Law Rep. 1859; Fish v. Fish, 184 Ky. 700, 212 S.W. 586.

If the group policy contained a provision contrary to, or in conflict with, the certificates upon which the suit is based, constituting a defense, in whole or in part, to the sum sued for, and if the Equitable desired to avail itself thereof, it was incumbent on it by an appropriate procedure to request the court to compel Reynolds to sue upon the group policy or produce it as proof. If it conceived then as now the group policy was the contract of insurance upon which alone he could sue and recover, it should have presented its objection and resorted to the appropriate remedies provided in such cases, in the trial court. It is too late to do so in this court.

The failure of the Equitable to present in the trial court is objection to the action being based on the certificates instead of the policy was a waiver of its right after a trial on the merits, or now, to object to the action being based on the certificates. Equitable Life Assur. Soc. of U.S. v. Branham, 250 Ky. 472, 63 S.W. (2d) 498; AEtna Life Ins. Co. v. Daniel, 251 Ky. 760, 65 S.W. (2d) 1025; Equitable Life Assur. Soc. of U.S. v. Merlock, 253 Ky. 189, 69 S.W. (2d) 12.

The argument, "there is a failure of evidence" showing Reynolds became "wholly disabled," so that he would be "wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupations," entirely disregards the evidence.

Reynolds testified he became sick prior to May 2, 1931 The symptoms of his ailment were "heart flutter," "smothering spells," "shortness of breath," "weak" and "nervous," "go to pieces with the least bit of exertion," and "climbing a flight of stairs exhausted him." On April 2, 1931, and thereafter, he was examined "several times" by Dr. Rice, the physician of the American Rolling Mill Company, who pronounced his disability such as to disqualify him as an employee of the American Rolling Mill Company. He was laid off on...