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

• Decision Date: 07 June 1932
• Citation: 53 S.W.2d 703,245 Ky. 474
• Parties: EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. FANNIN.
• Court: Kentucky Court of Appeals

53 S.W.2d 703

245 Ky. 474

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

Court of Appeals of Kentucky

June 7, 1932

As Modified November 15, 1932.

Appeal from Circuit Court, Boyd County.

Action by Laura L. Fannin against the Equitable Life Assurance Society of the United States. From the judgment for plaintiff, defendant appeals.

Reversed and remanded.

Louisville and H. R. Dysard and Dysard & Tinsley, all of Ashland, for appellant.

Vinson & Miller, of Ashland, for appellee.

CREAL C.

From a judgment of the Boyd circuit court for $1,600 in favor of Laura L. Fannin, beneficiary in two insurance certificates issued to James W. Fannin by the Equitable Life Assurance Society, hereinafter called the society, under its group policy to the American Rolling Mills Company, the society has appealed.

The master policy issued to the American Rolling Mills Company hereinafter called the company, contains a total and permanent disability provision which in part reads:

"If proof shall be furnished the Society that any employee insured under this policy has before having attained the age of 60, become wholly disabled by bodily injuries or disease, and will be wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupation, the Society will pay six months after receipt of such proof in full settlement of all obligation under the said policy pertaining to such Employee. ***"

It also contains special provisions which so far as pertinent read:

"1. The insurance upon the life of any employee covered by this contract shall continue only so long as such person remains in the employment of the Employer. All liability and obligation of the Society with respect to any such employee shall cease and determine immediately upon the termination of such person's employment with the Employer, without regard to the cause of such termination, except that *** total disability under the conditions named below, shall not constitute termination of employment within the meaning of this clause *** in case of the termination of the employment for any reason whatsoever the employee shall be entitled to have issued to him by the Society, without further evidence of insurability and upon application made to the Society within thirty-one days after such termination and upon the payment of the premium applicable to the class of risk to which he belongs and to the form and amount of the policy at his then attained age, a policy of life insurance. ***

6. Upon termination of employment as shown by the Employer's records, the insurance upon the life of any employee terminates automatically, unless continued under the individual conversion option. ***"

The certificates issued to insured contained in effect the same provisions as those quoted from the master policy; there being a slight difference in wording which in no way affects the meaning.

In her petition, appellee and plaintiff below set out the provisions of the certificates issued to her husband, the insured, and filed them with her petition. She alleged that while in the service of the company the insured became afflicted with pulmonary tuberculosis and being thereby wholly disabled to longer perform the duties of his employment with the company and while the two contracts were in full force and effect he left its service and employment on August 17, 1929, and died from tuberculosis on September 14, 1929. It is further alleged that "she has made demand upon the defendant for payment of the amounts due and owing to her under the aforesaid contract of insurance, and defendant has declined to recognize any liability thereunder."

By the first paragraph of its answer, the society denied that while in the service of the company the insured became afflicted with pulmonary tuberculosis or became wholly disabled or unable to longer perform the duties of his employment with the company.

In a second paragraph, the answer set out the provisions of the policy hereinbefore quoted, and, after quoting the latter provision, it is alleged in substance that on August 16, 1929, the insured, upon two days' notice to the company, voluntarily terminated his employment and ceased to remain in its service; that the company thereupon recorded the termination of such employment upon its records and upon its insurance ledger and gave notice of such termination to the society. It is further alleged that the insured did not upon such termination of his employment or at any time thereafter apply to the society for life insurance or pay to it any premium for such policy, and further that, while insured under the group policy, James W. Fannin did not become wholly or permanently or at all disabled so as to be prevented for life from pursuing any and all gainful occupation. The issues were completed by reply, and a trial before a jury resulted in a verdict upon which the judgment appealed from is based.

As grounds for reversal, counsel for appellant argue five points, but, since the first and third challenge the sufficiency of the evidence to take the case to the jury or to support the verdict, they will be treated together.

The first certificate of insurance was issued to James W. Fannin in 1925, and he continued in the employment until about August 17, 1929. There is, however, evidence that during this time he secured several months' leave of absence upon the advice of his physician and went to Arizona for his health. For about two weeks after he ceased working for the company insured worked at a filling station of the Standard Oil Company at Ashland. On September 6 he left his home to visit a friend, Frank Keller at Muskegon, Mich. Some of the employees at the American Rolling Mills Company testified that, when Fannin quit work there, he told them he was going to Michigan to work in oil fields. It is impracticable as well as unnecessary to give a detailed statement of all the evidence bearing on the physical condition of Fannin before he left the employment of the company. We think it sufficient to give a summary of the evidence bearing on that question.

For appellee, it is made to appear that while Fannin was at work for the company from 1924 to August, 1929, he lost 40 or 50 pounds in weight, looked badly, was short of breath, coughed continuously, spit blood, had night sweats, low blood pressure, often in the morning subnormal temperature with a high temperature in the evening. Dr. Hunter testified that he treated him for about five years before his death, and during that time he was suffering with pulmonary tuberculosis and tubercular bronchitis. The doctor testified that he secured from Mr. Fannin such family and other history as was necessary to make a diagnosis of his trouble, and he was permitted to testify as to the history given him by the patient, including statements that he was a cook in a tubercular camp while in the service of the United States in the World War. The doctor further testified that he advised the trip made by insured to Arizona because that climate was good for pulmonary troubles. It is further in evidence that some time before leaving the employment of the company and at all times thereafter appellee was weak and anaemic to...