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

• Decision Date: 04 February 1936
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. SPENCER.
• Court: Kentucky Court of Appeals

90 S.W.2d 704

262 Ky. 478

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. SPENCER.

Court of Appeals of Kentucky

February 4, 1936

Appeal from Circuit Court, Gallatin County.

Action by Raymond J. Spencer against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff defendant appeals.

Affirmed.

Wm Marshall Bullitt, Eugene B. Cochran, and Bruce & Bullitt, all of Louisville, for appellant.

F. A Harrison, of Williamstown, for appellee.

CREAL Commissioner.

In June, 1931, the Equitable Life Assurance Society of the United States issued to Raymond J. Spencer an insurance policy insuring his life in the sum of $5,000. In part the policy provided in substance and effect that if the insured should become totally disabled, due to bodily injury or disease, the insurer would, subject to the conditions set out in the policy, and which it is unnecessary to enumerate or detail, pay to the insured $50 per month during the continuation of such disability and would waive payment of all premiums upon the policy falling due after the commencement of such disability and during its existence.

In March, 1932, insured, claiming to have become totally disabled within the meaning of the terms of the policy, made and furnished to insurer claim and proof as required by the policy, and insurer upon receipt and consideration of the proof paid to insured as disability benefits the sum of $50 per month for nine months up to and including April 17, 1933. Thereafter further payments were refused, the insurer claiming that the continuance of the benefits under the policy was conditioned upon insured being rendered wholly unable to engage in any occupation or to perform work of any kind for compensation or value, and that it had information indicating that insured was able to perform some work of his occupation.

After his demand for continuance of the disability benefits had been refused, insured instituted this action setting up the provisions of the policy and alleging in his petition as amended that due to disease he had become totally and continuously disabled since March, 1932, and he prayed for judgment of $50 per month from April 17, 1933, up to the date he filed the amended petition, amounting in all to $950, and also for the sum of $158.46 paid as a premium on the policy during the continuance of the disability.

At the close of the evidence for plaintiff, the defendant offering no proof, the court sustained plaintiff's motion for a directed verdict, and from a judgment in conformity with the verdict and prayer of the petition, defendant is appealing.

The three points argued by counsel for appellant, in substance, are: (1) That appellee's claim is supported only by his own testimony; (2) that his claim is so unusual and his testimony so unsatisfactory that one may reasonably doubt his right to recover; (3) that the court should not have given a peremptory instruction for appellee on only his doubtful and unsatisfactory testimony. These contentions call for a detailed statement of the evidence.

According to the evidence of appellee, he is a farmer, 35 years old, and prior to March, 1932, was in good health, doing general farm work, but on that date became and has since been totally and permanently disabled as a result of disease, suffering from nervousness accompanied by severe, painful headaches. These headaches would sometimes last for weeks at a time with little surcease. The trouble has not responded to treatment, but has grown worse. He first consulted and was treated by a local physician, upon whose advice he, in June, 1932, went to Dr. MacIntire, a physician in Cincinnati who specializes in mental and nervous troubles, and has since been under his care and treatment. However, at times when he was unable to get some one to drive him to Cincinnati he would go to a local physician for treatment and medicine. Dr. MacIntire diagnosed his trouble as migraine, which is a form of headache popularly called sick or nervous headache and is of a neuralgic nature and frequently accompanied by nausea. After he first became afflicted, he tried to work but was unable to do anything. He thereupon ceased trying to do any work, because his condition was such he knew he could do nothing and his training and education is not of such character as to permit him to do any work except as a farmer or laborer.

Dr MacIntire testified that appellee came to him in June, 1932, and had returned several times since and had been under his care; that he diagnosed the trouble as migraine, a nervous disease characterized chiefly by headaches and exhaustion; that there are no physical signs of the disease manifested, and therefore subjective complaints are the conditions upon which diagnosis must be made; that he could only gauge the patient's ability to work at his regular occupation by the history given him by the patient; that some patients with migraine can work and some are not able to; that according to the history given him, appellee has been incapacitated since he first began treating him. When asked whether he considered appellee's condition permanent, he replied that he considered most cases of migraine permanent and believed appellee's condition was permanent and that he was in a weakened and nervous condition. When asked on cross-examination what objective symptoms he found of migraine in connection his examination, he repl...