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

• Decision Date: 12 June 1934
• Citation: 72 S.W.2d 716,255 Ky. 23
• Parties: EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. AUSTIN.
• Court: Kentucky Court of Appeals

72 S.W.2d 716

255 Ky. 23

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

Court of Appeals of Kentucky

June 12, 1934

Rehearing Denied June 26, 1934.

Appeal from Circuit Court, Johnson County.

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

Reversed with directions.

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

Kirk &amp Wells, of Paintsville, for appellee.

RICHARDSON Justice.

This is an action by a holder of individual certificates issued to him in accordance with the provisions of a group policy issued and delivered by the Equitable Life Assurance Society of the United States to the Consolidation Coal Company insuring the lives of its employees and binding the Equitable to pay "equal month Disability-installments," the number and amount set forth in the policy and riders thereto attached, in the event the employee, "before attaining the age of 60 becomes totally and permanently disabled by bodily injury or disease and will thereby be presumably prevented for life from engaging in any occupation or performing any work for financial value upon receipt of due proof of such disability," during the life of the policy.

Oba Austin, one of the employees of the Consolidation Coal Company, was issued and delivered certificates under two policies, the disability installments aggregating $1,750. He brought this action, claiming while he was an employee of, and working for, the Consolidation Coal Company in its mines at Van Lear, Johnson county, he had sustained an injury in January, 1932, resulting in a total, permanent disability. On a trial before a jury, a verdict was returned in his favor for $1,678.

The Equitable, appealing, is here insisting the instructions are erroneous "in requiring the jury to find a verdict for all the installments or none of them," and "in failing to instruct the jury it could find for a part of the installments"; "in allowing him to recover 35 monthly installments of $52.12 each, when he could recover 60 installments of $31.71 each"; and "in fixing the commencement of Austin's disability as of August 17th, 1931, instead of January 26th, 1932, the date of the alleged injury."

The form of the judgment herein is identical with that in Equitable Life Assur. Soc. of the U.S. v. Goble. 254 Ky. 614, 72 S.W.2d 35, decided March 20, 1934. Our observation and conclusion in that case are determinative of the Equitable's objection to the form of judgment in this case.

The testimony of Austin and the physicians introduced in his behalf, if believed by the jury, abundantly established his disability was both total and permanent, within the terms of the policy; while that of the witnesses for the Equitable established the contrary. It was the province of the jury to reconcile this conflicting evidence. It accepted the theory of Austin and his witnesses and not that of the Equitable and its witnesses. In the circumstances we are not authorized to disturb its verdict. The physicians who testified for the Equitable declared Austin, in February,...