Federal Life Ins. Co. v. Rascoe

• Decision Date: 19 June 1926
• Docket Number: No. 4455.,4455.
• Citation: 12 F.2d 693
• Parties: FEDERAL LIFE INS. CO. v. RASCOE.
• Court: U.S. Court of Appeals — Sixth Circuit

12 F.2d 693 (1926)

FEDERAL LIFE INS. CO. v. RASCOE.

No. 4455.

Circuit Court of Appeals, Sixth Circuit.

May 17, 1926.

Rehearing Denied June 19, 1926.

COPYRIGHT MATERIAL OMITTED

Thos. J. Tyne, of Nashville, Tenn. (J. M. Peebles and Thos. J. Tyne, Jr., both of Nashville, Tenn., C. A. Atkinson, of Chicago, Ill., and Jas. C. Jones, of St. Louis, Mo., on the brief), for plaintiff in error.

W. H. Washington and Edwin A. Price, both of Nashville, Tenn. (Thos. W. Schlater, Jr., of Nashville, Tenn., on the brief), for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DONAHUE, Circuit Judge (after stating the facts as above).

Neither the opinion of the court nor the motion for new trial can be accepted as a separate finding of facts. Law v. U. S., 266 U. S. 494, 496, 45 S. Ct. 175, 69 L. Ed. 401; U. S. v. Gordin and U. S. v. Gordin, Adm'r, 9 F(2d) 394, decided by this court December 1, 1925.

Without such separate findings of facts, neither the evidence nor the question of law presented by it is reviewable by this court. If, however, the facts stated in the opinion and in the motion for a new trial were accepted as a finding of facts made by the court, to which exceptions were taken by the defendant, the result would not be different. The record discloses that they are all sustained by substantial evidence. This court has no authority to consider and determine the weight of the evidence.

It is also assigned as error that the court abused its discretion in overruling the defendant's motion for a continuance after the transfer of the case to the law docket and the amendment of plaintiff's declaration. This order was entered on the 9th of February. No evidence was introduced until the 11th of February and the hearing of evidence was not concluded until the 12th. This afforded ample opportunity for officers of the company living in Chicago to appear and testify in the case. No reason is stated in the motion for continuance why it would require a week to secure the attendance of officers of the defendant. In the absence of such statement, and proof thereof, the presumption would obtain that the delay would be for their convenience only, and not because of necessity.

Nor was the change in the pleadings of such character as to present a wholly new issue. The plaintiff's action was based upon the failure and refusal of the defendant to comply with the terms of this contract. Plaintiff, in her original bill of complaint, not only prayed for a recovery of payments then due, but also prayed in the alternative for a recovery of the total sum she would be entitled to receive by reason of her total disability for life. It is true that the original action contemplated recovery upon the contract, and not for damages for its breach; yet the defendant in its answer denied all liability and averred that the plaintiff had received all she was entitled to receive under the terms of the contract. Therefore the original pleadings presented substantially the same issues of fact as presented by the amendments thereto. For the reasons stated, we do not think the court abused its discretion in refusing a continuance, nor has it been made to appear, by affidavit or otherwise, that the defendant has been prejudiced thereby.

It is further claimed that the court erred in overruling the demurrer to the amended declaration. In support of this assignment of error it is insisted that the amended declaration fails to state a cause of action, because there can be no anticipatory breach of a unilateral contract for the payment of money at some future date. As an abstract proposition that may be true, but this is not a unilateral contract for the unconditional payment of money, such as a bond or a promissory note. While the plaintiff in this case has fully discharged her obligation to pay the premiums coming due prior to her injuries, and has continued to pay the premiums until the insurance company declined to accept further payments, nevertheless it is averred in the bill of complaint that by the express terms of this contract she is still required to furnish, and has furnished, regularly to the insurance company, every 30 days, or as near thereto as may be reasonably possible, a report in writing from her attending physician or surgeon, fully stating the condition of the assured and the probable duration of her disability.

This contract therefore, is not an unconditional promise to pay a sum certain in installment, or in gross, where plaintiff has fully performed. On the contrary, she is required every 30 days to submit her person to the examination of a physician and pay the physician for making such examination and for preparing a report in writing to be forwarded to the company. These are the means and methods of proof of continuing disability stipulated in the contract to be furnished by the assured after first proofs of injury and resulting disability have been made and accepted by the insurance company, and, in the absence of fraud or collusion, this provision is binding alike on the company and the assured.

It is not merely a technical requirement, but a substantial and continuing burden, involving the expenditure of time and money on the part of the assured. It is said, however, that this is merely a condition precedent to the payment of these installments, and not a condition that could be enforced by the company. The latter may be true, so far as enforcement by action is concerned; nevertheless it is a provision binding on the plaintiff, the performance of which may be enforced by refusal to pay. In this respect it does not differ from a tender of property under a sales contract, or the tender of service under an employment contract (Hochstetter v. De la Tour, 2 El. & Bl. 678), or the delivery of notes as in Equitable Trust Company v. Railroad Company (D. C.) 244 F. 485, in which case this question is fully discussed in the opinion on pages 501, 502, and 504. See, also, Central Trust Co v. Chicago Auditorium, 240 U. S. 581, 36 S. Ct. 412, 60 L. Ed. 811, L. R. A. 1917B, 580; Lovell v. Ins. Co., 111 U. S. 264, 274, 4 S. Ct. 390, 28 L. Ed. 423; Parker v. Russell, 133 Mass. 74; Mutual Reserve Fund Life Ass'n v. Ferrenbach, 144 F. 342, 75 C. C. A. 304, 7 L. R. A. (N. S.) 1163; Railroad Co. v. Staub, 75 Tenn. (7 Lea) 397, cited with approval in Pierce v. Tenn. Coal Co., 173 U. S. 1, 14, 19 S. Ct. 335, 43 L. Ed. 591; Roehm v. Horst, 178 U. S. 1, 8, 20 S. Ct. 780, 44 L. Ed. 953, citing with approval Hochstetter v. De la Tour, supra.

In Roehm v. Horst, supra, it is said by Fuller, Chief Justice, in the opinion on page 8 (20 S. Ct. 783): "If a contract provides for a series of acts, and actual default is made in the performance of one of them, accompanied by a refusal to perform the rest, the other party need not perform, but may treat the refusal as a breach of the entire contract, and recover accordingly."

In this case the plaintiff does not rely upon an anticipatory breach, nor upon mere delay, neglect, or default to pay the several installments due under the terms of this contract, but upon an actual breach, after full proofs of continuing disability had been made in the manner and form specifically provided in the policy, coupled with an actual repudiation of the entire contract. A jury was waived, and the trial court found on the issues joined for the plaintiff. Tri-Bullion Smelting Co. v. Jacobsen, 233 F. 646, 147 C. C. A. 454. There are no separate findings of fact, and this court has no authority to review the evidence or questions of law presented by it. Law v. U. S., supra. But, even if this court could accept the...