Garden v. New England Mutual Life Ins. Co. of Boston

• Decision Date: 04 April 1934
• Docket Number: 41938
• Citation: 254 N.W. 287,218 Iowa 1094
• Parties: ARCHIE E. GARDEN, Appellee, v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY of Boston, Appellant
• Court: Iowa Supreme Court

254 N.W. 287

218 Iowa 1094

ARCHIE E. GARDEN, Appellee, v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY of Boston, Appellant

No. 41938

Supreme Court of Iowa, Des Moines

April 4, 1934

REHEARING DENIED DECEMBER 13, 1934.

Appeal from Mahaska District Court.--D. W. HAMILTON, Judge.

An action based upon an indemnity clause in an insurance policy providing for the waiver of premiums and the payment of monthly installments during the total and permanent disability of the insured. There was a trial to the court resulting in a finding and judgment for the plaintiff. The defendant appeals.

Affirmed.

Devitt. Eichhorn & Devitt, for appellant.

McCoy & McCoy, for appellee.

ANDERSON J. STEVENS, ALBERT, KINDIG, KINTZINGER, and MITCHELL, JJ concur. CLAUSSEN and DONEGAN, JJ., dissent.

OPINION

ANDERSON, J.

On September 16, 1929, the defendant-appellant, New England Mutual Life Insurance Company, issued to the plaintiff-appellee. Archie E. Garden, an ordinary life insurance policy for $ 10,000 in consideration of the payment of an annual premium of $ 239. There was attached to and made a part of said policy a supplemental agreement for income and waiver of premiums during total and permanent disability, and for double indemnity in case of death from accident. This supplemental agreement was issued by the company and made a part of the contract in consideration of the payment of an additional annual premium of $ 26. This supplemental agreement is the basis of this action and provides, among other things, as follows:

"Upon receipt of due proof that the Insured has become physically or mentally incapacitated so as to be wholly and permanently unable to engage in any occupation or profession or to perform any work whatsoever for compensation, gain, or profit, and that such disability has occurred while the Policy and this Agreement are in full force and prior to the policy anniversary nearest his sixty-fifth birthday, and has existed for a period of ninety days, the Company will pay to the Insured a Monthly Income of One Hundred Dollars, and will also waive the payment of every premium thereafter due upon the Policy and this Agreement, subject to the conditions herein set forth.

"The Company shall have the right at any time or times during the first year after receipt of proof of such disability, and thereafter not oftener than once a year, to require satisfactory proof of the continuance of total disability. Upon failure to furnish such proof, or if it shall appear at any time that the Insured is no longer totally and permanently disabled, this Agreement shall terminate, no further income will be paid nor premium waived, and all premiums thereafter due under the Policy shall be payable in conformity with its terms."

The record shows without dispute that the plaintiff was stricken on September 5, 1931, with infectious arthritis of the right knee; that he was confined to a hospital for six weeks, to his bed for four months, and at the time of the trial in July, 1932, was unable to get around except on crutches. At the time of the trial he still had severe pains and great soreness and tenderness in his knee and was unable to place any weight on his right leg. He also had severe headaches, and had run a fever from the time he was stricken until the time of trial. On the 5th day of January, 1932, four months after he was stricken, he submitted to the insurance company proof, upon forms furnished by the company, stating that he had become "physically incapacitated so as to be wholly and permanently unable to engage in any gainful occupation," and, after giving a detailed report as to his illness and disability, stated, "I have been wholly disabled from the 5th day of September, 1931, and in consequence of such disability, believe that I will presumably be wholly and continuously prevented thereby from engaging in any occupation or profession, or performing any work whatsoever for compensation, gain or profit." The company acknowledged the receipt of such proof of loss in a letter which is in the record, admitting that the proof showed that the plaintiff had been "practically" totally disabled since September 5, 1931, but that on account of a statement from a doctor who attended him, that his condition was improving slowly, and that he was able at that time to be partially employed, denied liability, stating, however, that if his "expected recovery should not occur, or the disease should spread, or other complications develop," the company would be willing to reopen the case.

The plaintiff's own testimony, and that of two doctors called by the plaintiff, and the one doctor called by the defendant, shows without question that he had been totally disabled from engaging in any occupation or profession, or from performing any work whatsoever, from the time he was stricken on September 5, 1931, to the date of the trial in July, 1932, or for a period of more than ten months, and the principal question of fact is as to the permanency of such disability. Drs. Barnes and McClure, who had been treating the plaintiff, the latter continuously up to the time of the trial, testified that the plaintiff's condition was septic, and that he showed general symptoms of an infection; that his physical appearance is not normal; that he shows a pallor and has a peculiar flush occasionally; that it is conjectural as to whether or not his injury will respond to medical treatment; that they had observed little or no improvement in his condition; that it is uncertain whether his temperature is merely a temporary matter; and that it is very uncertain whether the plaintiff's condition can be cured or improved in the future.

A Dr. Johnston, who represented the insurance company, and who had the plaintiff under examination and observation for three days in a hospital, testified that the fixation of the right knee was nearly complete; that there was marked pain over the whole joint on deep pressure; that the plaintiff ran a temperature during the three days he was under observation, and the doctor stated:

"I think the patient was permanently disabled for six or eight months after the onset of his trouble. The patient will without doubt be disabled for two or three months to come, after which time he will have recovered as much as possible. I made the examination just about two months ago. He has not recovered in the two months' time since my examination."

Under the foregoing evidence the trial court found that the plaintiff was totally and permanently disabled under the terms of the policy, and entered judgment for the plaintiff for ten months' compensation, or $ 1,000, and for an additional amount of $ 265 for a premium the plaintiff had paid under protest during the continuance of his disability. From this finding and judgment, the defendant has appealed.

The appellant's first contention is that the plaintiff had not complied with the terms of the policy in furnishing his preliminary proof of total and permanent disability. We cannot find in the record that this question was raised at any time in the lower court, and it appears that it is presented for the first time here. We have held that we will refuse to review a question raised for the first time on appeal. Houts v. Sioux City Brass Works, 134 Iowa 484, 110 N.W. 166. Aside from this, it will be noted that the policy does not provide any particular form of proof, nor indicate of what such proof shall consist, and, too, it must be noted that the proof as furnished by the plaintiff was upon a form furnished by the defendant company. We have held that an insurer may not complain as to the definiteness of the proof when it was furnished upon blank forms furnished by the insurer. Elmore v. Southern Surety Co., 207 Iowa 872, 224 N.W. 32. See, also, Francis v. Travelers Association (Tex. Civ. App.) 260 S.W. 938.

It will be noted also that the policy in suit does not require the furnishing of medical proofs. In Carson v. New York Life Ins. Co., 162 Minn. 458, 203 N.W. 209, 211, the court had under consideration this identical question and in disposing of it said:

"The second contention is that the proof furnished did not make out a prima facie case of disability. Where a policy is payable upon due proof of death of the insured, it is readily seen that, as a rule, no trouble is met with in furnishing conclusive proof. But in a case of this nature, where the insured may not be able to obtain other testimony than his own of a disability which entitles to the insurance, we do not think he should be debarred from presenting his proof in court, if it be not taken as due proof by the company. The policy does not provide such an unreasonable requirement as that the proof of loss must be satisfactory to the insurer. It simply provides for due proof. It does not call for medical proof. The company was advised of the accident and the claim that plaintiff was disabled. His own affidavit of disability was furnished defendant in time, on May 5, 1921 wherein he states that he has been wholly disabled since the 24th of November, 1920, (the time of his injury) 'and will presumably be permanently, continuously, and wholly prevented thereby for life from pursuing any and all gainful occupations'; and he therefore claimed the disability benefit under the policy. That neither the physician who attended him, nor the one designated by defendant to give an opinion, then thought the disability permanent, and so stated in their affidavits, should not conclude plaintiff. That was only their opinion, which, according to the finding of the court and jury, proved incorrect. It must therefore be held that, when the proof plaintiff did present to defendant by his own affidavit of total permanent disability has been found true, it...