Fidelity Mut. Life Ins. Co. v. Gardner's Adm'r

• Decision Date: 11 February 1930
• Citation: 25 S.W.2d 69,233 Ky. 88
• Parties: FIDELITY MUT. LIFE INS. CO. v. GARDNER'S ADM'R.
• Court: Kentucky Court of Appeals

25 S.W.2d 69

233 Ky. 88

FIDELITY MUT. LIFE INS. CO. v. GARDNER'S ADM'R.

Court of Appeals of Kentucky

February 11, 1930

Rehearing Denied March 25, 1930.

Appeal from Circuit Court, Hart County.

Action by Darrell D. Gardner's administrator against the Fidelity Mutual Life Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm Marshall Bullitt, John E. Tarrant, and Bruce & Bullitt, all of Louisville, for appellant.

C. B Dowling and Stokes A. Baird, Jr., both of Munfordville, for appellee.

CLAY J.

On June 2, 1926, the Fidelity Mutual Life Insurance Company issued to Darrell D. Gardner a policy insuring his life in the sum of $1,000, payable to his estate, and providing for permanent total disability benefits for which $2.47 of the annual premium of $30.79 was paid. Among the miscellaneous provisions contained in section 4 of the policy is the following:

"Payment of premiums and Days of Grace.--Every premium is due and payable in advance at the Head Office of the Company in Philadelphia, Pennsylvania, but may be paid to an authorized agent of the Company upon delivery of a receipt signed by the President and Treasurer of the Company and countersigned by said agent. A grace of thirty-one days from the due date named in this policy for the payment of every premium after the first is hereby granted, during which time the insurance shall continue in force, and if the insured shall die within the days of grace, the amount of the over-due premium shall be deducted in any settlement hereunder. When this policy shall become payable by the death of the insured, there shall be deducted any unpaid premium or premiums for the full policy year within which the insured may die. Except as herein provided, the payment of a premium shall not maintain this policy in force beyond the due date of the next premium. Upon default in the payment of any premium or premium obligation, this policy shall immediately cease and determine and become void, and all premiums previously paid shall be forfeited to the Company except as provided in Section 3."

The material provisions of section 6, relating to permanent disability benefits, are as follows:

"After the first premium shall have been paid hereunder, and prior to default in payment of any subsequent premium, upon receipt by the Company at its Head Office of due proof that the insured has become totally and presumably permanently disabled after the insurance under this policy became effective and prior to the anniversary of this policy on which insured's age at nearest birthday is sixty-five years the Company will allow permanent total disability benefits upon the terms and conditions hereinafter set forth in this Section.

Disability shall be deemed to be total whenever the insured becomes wholly disabled by bodily injury or disease, so that he is prevented thereby from performing any work or from following any occupation whatsoever for compensation, gain or profit, and such total disability shall be presumed to be permanent after the insured has been continuously so disabled for three months or more. The entire and irrecoverable loss of the sight of both eyes or of the use of both hands or of both feet, or of one hand and one foot, shall be considered a permanent total disability.

1. Waiver of Premium.--The Company will, during the continuance of such permanent total disability, waive payment of each premium on this policy, as it becomes due, beginning with the first premium due after approval of such proof by the Company. Any premium due prior to such approval must be paid in accordance with the terms of this policy, and when so paid, if it fell due after the commencement of such permanent total disability, will be refunded upon approval of such proof.

2. Disability Income.--In addition to waiving the payment of premiums as aforesaid, the Company will allow to the insured, upon receipt and approval of such proof, a disability income of $10.00 as of the date of the commencement of such permanent total disability and a like amount on the corresponding day of each calendar month thereafter during the continuance of such permanent total disability.

Other Benefits Not Decreased.--The benefits payable under this policy at the death of the insured or at Maturity as Endowment and the benefits provided in Sections 2 and 3 on second page hereof shall not be decreased by reason of the allowance of any permanent total disability benefit, and dividends will be paid in the same manner as if no permanent total disability benefit has been received hereunder."

The premiums due on June 2, 1926, and June 2, 1927, were paid. The premium due on June 2, 1928, was not paid; but during the latter part of June, and within the period of grace, the insured became totally and permanently disabled. The insured was confined to his bed from that time until July 5th, when he was sent to the Louisville City Hospital. Immediately after entering the hospital he was operated on for appendicitis. Peritonitis developed, and he died on July 13th, ten days after the grace period expired. No notice or proof that the insured was disabled was given the company prior to default in payment of the premium, but on July 16 1928, counsel for Gardner's...