Gardner v. New York Life Insurance Company, 5638.

• Decision Date: 04 March 1958
• Docket Number: No. 5638.,5638.
• Citation: 253 F.2d 562
• Parties: Joseph D. GARDNER, Appellant, v. NEW YORK LIFE INSURANCE COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

253 F.2d 562 (1958)

Joseph D. GARDNER, Appellant, v. NEW YORK LIFE INSURANCE COMPANY, a corporation, Appellee.

No. 5638.

United States Court of Appeals Tenth Circuit.

March 4, 1958.

Dan S. Bushnell, Salt Lake City, Utah, for appellant.

A. W. Watson, Salt Lake City, Utah (George A. Critchlow and Ned Warnock, Salt Lake City, Utah, were with him on the brief), for appellee.

Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

Joseph D. Gardner instituted this action against New York Life Insurance Company to recover judgment for amounts paid as premiums upon four policies of life insurance with double indemnity and waiver of premium benefits. It was alleged in the complaint that the policies provided that in the event the insured became totally disabled and remained continuously in that condition for at least six months, the insurer would waive payment of the premiums falling due after the commencement of such total disability; that plaintiff was totally disabled and had been so for a period in excess of six months on the dates certain premiums were due; that the plaintiff paid such premiums under protest; and that repayment had been demanded and refused. In response to a motion for a more definite statement, plaintiff subsequently pleaded that the premiums were paid on January 28, January 28, February 3, and February 3, 1955, respectively. By answer, payment of the premiums was admitted but total disability as defined by the terms of the policies on the due dates of such premiums was denied. The issue of total disability was submitted to the jury. The jury returned a verdict for plaintiff and judgment was entered accordingly. After return of the verdict and entry of the judgment, the parties filed in the case a written stipulation in which it was agreed that the case be treated as though defendant, at the close of plaintiff's evidence, moved for an order directing a verdict for defendant upon the ground that there was no substantial evidence to show that plaintiff was totally disabled within the provisions of the policies; as though the court took such motion under advisement and reserved its ruling thereon; as though defendant, at the close of the evidence for both parties, moved for an order directing a verdict for defendant upon the ground that there was no substantial evidence to show total disability within the provisions of the policies; as though the court took such motion under advisement and reserved its ruling thereon; as though, after the return of the verdict and entry of the judgment, and within the time required by the rules of civil procedure, rule 50(b), 28 U.S.C. A., defendant moved for judgment notwithstanding the verdict upon the ground that there was no substantial evidence to show total disability of plaintiff within the provisions of the policies; and as though the court granted the motion for judgment in favor of the defendant notwithstanding the verdict, thus in essence granting the motion for a directed verdict for defendant made at the close of all the evidence. And it was provided in the stipulation that by executing such stipulation, plaintiff in no way waived his right to appeal from and challenge on appeal the order granting the motion for a directed verdict and judgment notwithstanding the verdict the same as though the motions had been made at the proper times respectively. The court granted the motion for a directed verdict for defendant made at the close of the evidence of both parties and the motion for judgment in favor of the defendant notwithstanding the verdict. The verdict and the judgment for plaintiff entered thereon were set aside, and judgment was entered for defendant. Plaintiff seasonably appealed.

There is need at this juncture to consider the definitive language contained in the policies respecting total disability. Two of the policies involved were referred to as 17 million series policies and two as 25 million series policies. With certain conditions not having any present material bearing, each policy provided that upon receipt of due proof that the insured was totally disabled as defined in the policy and had been continuously so disabled for at least six months, the insurer would waive the payment of each premium falling due after the commencement of such disability and during its uninterrupted continuance. There were some textual differences between the provision in the 17 million series policies and that in the 25 million series defining total disability. But the parties agreed that the cause should be submitted to the jury as though the language in the 17 million series policies was identical with that in the 25 million series policies; and the cause was submitted in that manner. The pertinent portion of the provision in the 25 million series policies defining total disability read:

"Subject to the other terms and conditions hereof, total disability is defined as a disability of the insured, resulting from bodily injury or disease, which wholly prevents him from engaging in any and every occupation or business for remuneration or profit."

The provision must be construed in respect to its meaning and scope in accordance with the law of Utah. And as we understand the law of that state, the provision should be given a liberal construction which reasonably tends to effectuate the objects and purposes contemplated by the parties at the time of the issuance of the policies in respect to the benefits which the insured would derive therefrom; that it was not essential in order to come within the purview of the provision that the insured be helpless to the extent that he was unable to attend to any of his needs; and that it was enough if he was unable to perform with a measure of success substantially all of the acts of any gainful occupation within the range of his normal capabilities. Colovos v. Home Life Insurance Company of New York, 83 Utah 401, 28 P.2d 607; Gibson v. Equitable Life Assurance Society of United States, 84 Utah 452, 36 P.2d 105; Ralston v. Metropolitan Life Insurance Co., 90 Utah 496, 62 P.2d 1119.

In order to recover for the premiums paid under protest, the burden rested upon plaintiff to prove that he was totally disabled within the purview of the policies at the time such premiums were paid and had been so disabled for more than six months prior thereto. But in determining whether the burden was met and discharged, it is to be borne in mind that the verdict was directed against plaintiff for failure of proof to establish total disability; and it is settled law that where a verdict is directed against a party for failure of proof, the evidence adduced by him shall be taken as true and all reasonable inferences fairly to be drawn therefrom are to be viewed in the light most favorable to him. United States v. Blair, 10 Cir., 193 F.2d 557; Jones v. Chubb, 10 Cir., 216 F.2d 869; Wabash Railroad Co. v. Johnson, 8 Cir., 211 F.2d 664; International Paper Co. v. United States, 5 Cir., 227 F.2d 201.

Viewed in that manner, evidence was adduced which established these facts. Plaintiff was born in 1905. He went through grade school and high school at Salt Lake City, Utah. He spent three years in Germany on a mission for the Church of Jesus Christ of Latter Day Saints....