Hagman v. Equitable Life Assurance Society

• Decision Date: 16 February 1926
• Citation: 214 Ky. 56
• Parties: Hagman v. Equitable Life Assurance Society of the United States.
• Court: United States State Supreme Court — District of Kentucky

214 Ky. 56

Hagman v. Equitable Life Assurance Society of the United States.

Court of Appeals of Kentucky. Common Pleas, First Division.

Decided February 16, 1926.

1. Appeal and Error — Finding of Fact by Circuit Court Treated as Finding of Jury. — Where circuit court saw and heard witnesses, his finding of facts must be treated as a finding of a properly instructed jury.

2. Insurance — Insured Held to have Become "Physically Incapacitated" to Engage in Gainful Occupation. — Where insured had to ride to his office so as to keep his broken leg straight out, and had so to keep it at the office, could sit at a desk and answer a telephone call, but on account of pain, could in no just sense of the word do business, and was from his physical condition prevented from performing acts or duties required of him in his business, he was "physically incapacitated" within life insurance policy, providing for waiver of payment of premium and a yearly income if he became physically incapacitated to engage in gainful occupation.

3. Insurance — Contention of Insurer that Proper Notice Not Given it Not Sustained. — Where, as soon as insured was injured, insurer's agent was notified, and came to see him, and knew about his condition, and insured filled out and sent to insurer all blanks they sent to him, and papers which insured sent gave insurer notice of the facts, insurer's contention that proper notice was not given it cannot be sustained.

4. Insurance — Insured Held Entitled to Yearly Income in Monthly Installments After Proof of Diability Existing for Sixty Days. — Under life policy, providing that, if insured became physically incapacitated to engage in gainful occupation and furnished proof thereof, and such disability existed for sixty days, insurer, during continuance of such disability, would pay a yearly income, payable in monthly installments, insured was entitled to receive the yearly income payable in installments during continuance of disability, after furnishing proof that disability had existed for sixty days; provision that income was payable six months after proof and monthly thereafter only fixing time of payments.

5. Insurance — Doubt as to Meaning of Contract is Resolved in Favor of Insured. — Under rule that policy must be liberally construed in favor of insured, doubt as to the meaning of the contract must be resolved in favor of insured and against insurer.

Appeal from Jefferson Circuit Court.

L.F. SPECKMAN for appellant.

WILLIAM MARSHALL BULLITT, BRUCE, BULLITT, GORDON & LAURENT and LEO T. WOLFORD for appellee.

OPINION OF THE COURT BY COMMISSIONER HOBSON.

Reversing.

The Equitable Life Assurance Society of the United States on September 2, 1920, issued to William G. Hagman a policy by which, in consideration of the payment of an annual premium of $981.00, it insured his life, and in addition the policy contained the following provisions:

"If the insured . . . provided all premiums have been paid and this policy is in full force and effect, becomes physically . . . incapacitated to such an extent that he is and will be wholly and presumably permanently unable to engage in any occupation or perform any work for compensation of financial value, and furnishes proof thereof and that such disability has then existed for sixty days, the society, during the continuance of such disability, will waive payment of any premium payable upon this policy after receipt of such proof, and will pay to the insured an income of $2,400.00 a year, payable in monthly installments. . . . The income shall be payable six months after receipt of proofs of such total and permanent disability and monthly thereafter during the continuance of such total and permanent disability. . . . The society, after the acceptance of proof and disability, shall have the right at any time, but not more frequently than once a year, to require proof of the continuance of such total disability. If the insured shall fail to furnish satisfactory proof thereof, or if it appears at any time that the insured has become able to engage in any occupation for remuneration or profit, no further premiums will be waived and nourther income payments will be made hereunder on account of such total disability. . . . Total disability shall be presumed to be permanent when it is present and has existed continuously for not less than three months."

Alleging that he had become totally disabled on March 16, 1923, and continued so until January 21, 1924, he brought this suit to recover the monthly installments of $200.00 and also to recover the amount of the premium paid in September, 1923, which the company refused to assume and required him to pay to prevent its forfeiting his policy. The allegations of the petition were controverted. The case was submitted on the law and the facts to the court. The plaintiff introduced his evidence, the defendant introduced no evidence and the case being submitted to the court it made the following finding of facts:

"Hagman became incapacitated on March 16, 1923, to such an extent that he was wholly unable to engage in any occupation or perform work for compensation of financial value. His disability between June 5 and 26 was total. He did not, in form, furnish proof of the continuance of his total disability for sixty days. The policy containing the requirement was not in his possession, the society holding it as security for a loan. He had an accident and health policy in the same company. He filled out and returned all report blanks sent to him under this, every sixty days. It does not appear that the company sent him any form applicable to the policy in contest. Through reports under the accident policy it had all the substantial facts that it would have had from reports under the policy involved here. In the report of July 15, 1923, under the accident policy, following the society's definition of partial disability, he stated that this disability was partial between June 5 and 26. The society's definition of partial disability is inconsistent with the definition of total disability adopted by the courts. On May 17, 1923, Hagman's total disability had existed continuously for sixty days. On June 17, 1923, his total disability had existed continuously for three months and it became presumably permanent. A premium became due on September 1, 1923, during the existence of such total and presumably permanent disability. The society denied liability on grounds other than failure to furnish proof. Hagman's total disability continued until January 21, 1924. On November 17, 1923, his total disability had continued for six months from the sixty days at the end of which the policy required proof."

On these facts the court made the following findings of law:

"1. Where the society...