Gibson v. Equitable Life Assurance Society of the United States

• Decision Date: 11 September 1934
• Docket Number: 5111
• Citation: 84 Utah 452,36 P.2d 105
• Court: Utah Supreme Court
• Parties: GIBSON v. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES

36 P.2d 105

84 Utah 452

GIBSON v. EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES

No. 5111

Supreme Court of Utah

September 11, 1934

Appeal from District Court, Third District, Salt Lake County; David W. Moffat, Judge.

Action by William S. Gibson against the Equitable Life Assurance Society of the United States. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Hurd &amp Hurd, of Salt Lake City, for appellant.

Foote &amp Dawson and K. C. Tanner, all of Salt Lake City, for respondent.

EPHRAIM HANSON, Justice. STRAUP, C. J., and ELIAS HANSEN, J., and FOLLAND, JJ., concur. MOFFAT, J., being disqualified, did not participate.

OPINION

EPHRAIM HANSON, Justice.

This action was originally commenced in the city court of Salt Lake City. In the original complaint the plaintiff alleged that on January 1, 1925, defendant made and delivered to plaintiff its certain policy of insurance--the policy being pleaded by attaching a copy thereof to the complaint as an exhibit--by the terms of which defendant agreed to pay to plaintiff's wife $ 3,500 upon receipt of proof of death, and to pay to plaintiff the sum of $ 120.75 a month upon receipt of proof that plaintiff, prior to the age of 60, was wholly and presumably permanently prevented from pursuing any and all gainful occupations; the first monthly payment to be made six months after the date of said total and presumably permanent disability; that on August 16, 1928, he sustained a fracture of his right leg at the knee and other injuries which wholly disabled him, and that he would be so wholly disabled for all time to come, and was thereby permanently prevented from pursuing any gainful occupation; that the policy was in full force and effect when the injury occurred and all premiums paid; that written notice of the injuries was given on January 2, 1929, and on January 30, 1929, a statement from a duly licensed physician was furnished defendant, setting forth the nature of the injuries and that plaintiff was wholly and permanently disabled from pursuing any and all gainful occupations; that, more than 6 months after the happening of said injuries, plaintiff demanded from defendant the first monthly installment of $ 120.75, but defendant failed and neglected to pay the same. The prayer is for the sum of $ 120.75, with interest from February 19, 1929, and costs. The so-called policy attached to the complaint is a certificate issued by the defendant showing that the Ogden Union Railway & Depot Company, as plaintiff's employer, had contracted to insure plaintiff in the sum of $ 2,000. This certificate further recites that it is "furnished in accordance with the terms of the said Equitable Group Insurance Policy, which policy together with the employer's application therefor constitute the entire contract between the parties." The certificate further provides:

"If proof shall be furnished the Society that any employee insured under the aforesaid policy has, before having attained the age of 60, become wholly disabled by bodily injuries or disease and will be wholly and presumably permanently prevented thereby for life from pursuing any and all gainful occupations, the Society will pay to such employee in full settlement of all obligations under the said policy pertaining to such employee, the equivalent of the full amount of the insurance on such life in monthly installments as follows:

Amount of

Number of

Amount of

Insurance

Installments

Each Installment

$ 3,500.00

30

$ 120.75

The first installment to be payable six months after the date when such total disability became presumably permanent, and the remainder monthly thereafter."

A rider was subsequently issued to plaintiff increasing the amount of insurance, which accounts for the amount above stated.

A demurrer to this complaint was sustained by the city court and an amended complaint filed. No question is presented on this appeal as to the correctness of the ruling sustaining the demurrer. Defendant, however, alleges error in the action of the city court in denying its motion to strike the amended complaint and its motion to strike the second amended complaint. The motion to strike the amended complaint was grounded upon the theory that it stated, and was predicated upon, a cause of action different from that alleged in the original complaint, while the motion to strike the second amended complaint asserted that said complaint alleged a cause of action different from that set up in either the original or the amended complaint.

In order to pass upon the assignments of error thus presented, it is necessary to examine the amended and also the second amended complaints. The amended complaint, so far as it is here pertinent, alleged that on January 1, 1925, the defendant, in consideration of a monthly payment of $ 2.10 paid to it, and of plaintiff's employment with the Ogden Union Railway & Depot Company, made and delivered its contract of insurance, whereby the defendant promised to pay to the named beneficiary $ 3,500 upon proof of death of plaintiff and to pay to plaintiff the sum of $ 120.75 monthly for thirty months upon receipt of proof that plaintiff while so employed and prior to age 60 was wholly and presumably permanently prevented by bodily injuries or disease from pursuing any and all gainful occupations, the first payment to be made 6 months after the date of such presumably permanent disability. The second amended complaint, so far as it is here pertinent, alleged that on January 1, 1925, defendant, in consideration of a monthly premium of 60 cents for each $ 1,000 of insurance paid by plaintiff and a further monthly sum in an unknown amount to be paid by the Ogden Union Railway & Depot Company, issued and delivered a group policy of insurance, being policy No. 1909, upon the lives of certain employees of the depot company, to whom defendant issued individual certificates of insurance in the proper amounts; that on said date defendant issued its certificate No. 1909-2172 to plaintiff, an employee of the depot company, by the terms of which defendant insured plaintiff in the sum of $ 2,500; that on July 23, 1927, in consideration of additional premiums to be paid by plaintiff and said depot company, defendant issued to plaintiff a rider to said certificate, increasing the amount of said insurance to $ 3,500; that both the group policy and certificate contained certain identical provisions, said provisions being set out in haec verba, the pertinent parts of which have already been set out in our statement of the original complaint. It is claimed by appellant that these three complaints each relies on a different contract and so states a different cause of action. We do not concur in such contention. It is clear that only one contract is involved. The certificate set out in the original complaint expressly states that it is issued pursuant to the group policy, and that these instruments, together with the employer's application, constitute the entire contract. In setting forth the certificate only in the original complaint, plaintiff pleaded only a part of the contract. In the amended complaint, plaintiff attempted to state the substance of the same contract of insurance, adding a statement of the consideration given for the same. In his second amended complaint, plaintiff sets out the whole contract and shows the relation of the certificate, pleaded in the original complaint, to the group policy. There was only one contract to sue upon, and an imperfect or inadequate statement of such contract could be corrected by amendment. Larsen v. Gasberg, 43 Utah 203, 134 P. 885. No new or different cause of action was injected by such amendment.

The case, however, was tried in the city court and in the district court upon the plaintiff's amended and supplemental complaint. The supplemental complaint differed from the second amended complaint only in that it set out that eight installments had become due, and prayed for $ 966, with interest and costs. To this amended and supplemental complaint defendant answered, admitting the issue of the group policy, the certificate, and the rider increasing the insurance to $ 3,500. Defendant denied plaintiff sustained the injuries alleged, and denied plaintiff was wholly and presumably permanently disabled so as to prevent him from pursuing any and all gainful occupations. Defendant admitted the group policy was in force August 16, 1928, and that demand was made for the monthly installment, but denied plaintiff was entitled to the same. After the case had been appealed to the district court, defendant filed an amended answer in substance the same as its original answer, but alleged that plaintiff's employment terminated on August 16, 1928, and the policy terminated December 31, 1928; that no proof of disability was furnished prior to December 31, 1928, or while plaintiff was an employee or while he was insured, and no proof of disability was ever furnished; that plaintiff did not prior to December 31, 1928, nor at any other time while insured, become wholly or presumably permanently disabled. Plaintiff replied, alleging tender of a portion of his January and February, 1929, premiums, the refusal of the depot company to furnish forms for submitting proof, and the inability of plaintiff to obtain such proof forms until January 22, 1929, at which time plaintiff furnished the proof required, the denial of liability by the defendant upon the sole ground that the plaintiff was not disabled as contemplated by the policy, and claiming that the defendant was estopped to assert a forfeiture of said insurance by reason of plaintiff's failure to furnish proof prior to December 31, 1928.

Upon the issues thus made, the case was tried to a jury. The jury found in favor of plaint...