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

• Decision Date: 12 February 1935
• Citation: Equitable Life Assur. Soc. of U.S. v. Reynolds, 259 Ky. 504, 82 S.W.2d 509 (Ky. Ct. App. 1935)
• Parties: EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. REYNOLDS.
• Court: Kentucky Court of Appeals

82 S.W.2d 509

259 Ky. 504

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

Court of Appeals of Kentucky

February 12, 1935

As Modified on Denial of Rehearing June 4, 1935.

Appeal from Circuit Court, Boyd County.

Action by Emmett Reynolds against the Equitable Life Assurance Society of United States. Judgment for plaintiff, and defendant appeals.

Affirmed.

William Marshall Bullitt, Eugene B. Cochran, and Bruce & Bullitt, all of Louisville, for appellants.

John T Diederich, of Ashland, for appellee.

RICHARDSON Justice.

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 ground 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; Ætna 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 account of his health at the direction of Dr. Rice; he returned and again was laid off at his direction. Dr. Humphrey, who had known Reynolds for twenty years, began to treat him in May, 1931, and had him under observation "more or less" constantly since that time. He first examined Reynolds "by the method of percussion and osculation" and a stethoscope; later with the X-ray, which confirmed his opinion. It was his "distinct opinion" that Reynolds' ailment was "a dilated heart"; that is, the cavities and the walls were stretched and had lost their power to force the circulation over the body. Also it was his opinion that his condition was incurable and totally and permanently disabled him. Dr. De Bord examined Reynolds with a stethoscope, and it was his opinion he had "an enlarged heart with low blood pressure," and he was totally and permanently disabled "on account of the condition of his heart." In April, 1932, Dr. Woods, for the Equitable, examined him and was unable to determine he had "enlargement of the heart" or discover he was disabled in any respect. In December, 1932, Dr. McGehee, for the Equitable, also examined him and it was his opinion his "heart was regular in tone," "no murmur" and "no enlargement." However, on cross-examination, he admitted he discovered he had "a mitral regurgitation"; "that is, a leakage of the heart."

It is not doubtful that the evidence, though conflicting, is amply sufficient to authorize a submission of this issue to the jury and to sustain its verdict. Equitable Life Assurance Soc. of U.S. v. Merlock, supra.

Our résumé of the evidence is a confutation of the argument that the "medical evidence refers only to the condition of his health after his employment terminated," or does not disclose Reynolds' condition before the termination of his employment.

The condition of Reynolds' health before he was laid off in May is described by him. Dr. Humphrey's testimony as we have stated it corroborates his statement and furnishes "medical evidence" as to his condition at the time he was laid off and subsequent thereto. However, the testimony of Reynolds alone is sufficient to establish that his total disability occurred before the termination of the policy.

Reynolds' testimony to the effect he was afflicted with "heart trouble" before he ceased to work was sufficient to establish he had become totally and permanently disabled within the certificates before he was laid off in May, 1931. See Equitable Life Assur. Soc. of U.S. v. Merlock, supra. It was not imperative that causal connection between his ailment before he was laid off and thereafter be shown by expert testimony. Pacific Mutual Life Ins. Co. v. Cash, 224 Ky. 292, 6 S.W.2d 239; Phillips' Committee v. Ward's Adm'r, 241 Ky. 25, 43 S.W.2d 331; DeFilippo's Case, 284 Mass. 531, 188 N.E. 245. Even if the rule was otherwise, the testimony of Dr. Humphrey abundantly fulfills its requirements.

It is shown without contradiction that Dr. Rice, the physician of the American Rolling Mill Company examined Reynolds before he was laid off in May 1931. It is plain to be seen that, if Reynolds' testimony and that of Dr. Humphrey describing his ailment at that time was not sufficient to show the actual condition of his heart before he was laid off, or if their testimony as now insisted was not worthy of credit, it would have been easy for the Equitable to produce Dr. Rice as a witness and thus brought to the jury testimony entitled to verity, establishing the actual condition of Reynolds' health prior to, and in, May, 1931. The insistence that he was not...