Hallowes v. New York Life Ins. Co.

• Decision Date: 14 July 1938
• Citation: 184 So. 7,133 Fla. 872
• Parties: HALLOWES et al. v. NEW YORK LIFE INS. CO. (two cases).
• Court: Florida Supreme Court

184 So. 7

133 Fla. 872

HALLOWES et al. v. NEW YORK LIFE INS. CO. (two cases).

Florida Supreme Court

July 14, 1938

Certiorari to Circuit Court, Duval County; R. H. Rowe, Judge.

Actions at law by Sarah R. Hallowes and William A. Hallowes, III, as executrix and executor of the estate of William A. Hallowes Jr., deceased, against the New York Life Insurance Company for recovery of disability benefits under two separate life policies. The circuit court reversed judgments rendered by the civil court of record in favor of the plaintiffs, and the plaintiffs bring certiorari.

Judgments of the circuit court quashed and causes remanded.

Judgment adhered to in 184 So. 12, 184 So. 14.

COUNSEL

Cockrell & Cockrell, of Jacksonville, for petitioners.

Doggett McCollum, Howell & Doggett, of Jacksonville, for respondent.

OPINION

BROWN Justice.

In the two above entitled cases, writs of certiorari were granted by this court to review the judgments of the Circuit Court for Duval County reversing two judgments which had been rendered by the Civil Court of Record of Duval County in favor of Mrs Sarah R. Hallowes, as Administratrix, and William A. Hollows, III, as Executor, of the estate of William A. Hallowes, Jr., against the New York Life Insurance Company. If each of the judgments of reversal contain such affirmative directions to the court below to proceed in violation of certain essential requirements of the law in the ultimate judgments required to be rendered, this would bring these cases within the exception to the general rule, which is that a judgment of reversal and remand for another trial is not such a final judgment as will authorize review by certiorari. Midland Motor Car Co. v. Willys-Overland, Inc., 101 Fla. 837, 132 So. 692; Grodin v. Railway Express Agency, 116 Fla. 378, 153 So. 476. It was upon the theory that, if petitioner's contention as to the law governing these cases was correct, the judgments of reversal rendered therein by the Circuit Court would then fall within the exception recognized by the above cited cases and thus authorize review by certiorari--it was upon this theory that these writs were issued, the final disposition of which depends upon whether the Circuit Court, in its reversal and directions to the trial court departed from the essential requirements of the law as applied to the facts of these cases.

These two cases are separate actions at law originally tried in the Civil Court of Record, Duval County, wherein appellants, as Executors of the Estate of William A. Hallowes, Jr., sought to recover against appellee, New York Life Insurance Company, disability benefits under provisions contained in two separate life insurance policies issued by said Company in the year 1920 upon the life of William A. Hallowes, Jr., such benefits being claimed for a period of time extending from April 5, 1933, to the death of insured on August 21, 1933. The cases being essentially similar, were here argued and submitted any contest

These cases do not involve any contest as to the life insurance per se, which presumably was paid upon proof of death of the insured, but the contest, in each case, pertains only to the question of the Company's liability for disability benefits.

The policy dated December 28, 1920, on the first page thereof, provided that:

'The Company agrees to pay to the insured one per cent of the face of this policy each month during the endowment period, if the insured becomes wholly and permanently disabled before age 60, subject to all of the terms and conditions of Section 1 hereof.'

The pertinent provisions of Section 1 are as follows:

'Section 1. Disability benefits. 1. Disability benefits shall be effective upon receipt of due proof, before default in the payment of premiums, that the Insured became totally and permanently disabled after he received this policy and before its anniversary on which the insured's age at nearest birthday is 60 years.'

'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 engaging in any occupation, * * * and under this contract disability shall be presumed to be permanent after the Insured has been continuously so disabled for not less than three months.'

'2. Income Payments. On the 1st day of the calendar month following receipt of such proof, if such disability has continued until that day, the company will pay the Insured a sum equal to one per cent. of the face of the policy and a like sum on the 1st day of each calendar month thereafter during the continuance of such disability within the endowment period.'

The other policy, dated February 1st, 1920, contained the following:

'And the Company agrees to pay to the Insured one-tenth of the face of this policy per annum during the lifetime of the Insured, if the Insured becomes wholly and permanently disabled before age 60, subject to all the terms and conditions contained in Section 1 here of.'

The pertinent provisions of Section 1 of this policy are as follows:

'Section 1. Total and Permanent Disability Benefits.--Whenever the company receives due proof, * * * that the Insured, * * * has become wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation, * * * and that such disability has then existed for not less than sixty days * * * then * * *

'2. Life Income to Insured.--One year after the anniversary of the Policy, next succeeding the receipt of such proof, the company will pay the Insured a sum equal to one-tenth of the face of the policy and a like sum on each anniversary thereafter during the lifetime and continued disability of the insured * * *.'

Both the policies contain the following express provision:

'No agent is authorized to waive forfeitures, or to make, modify or discharge contracts, or to extend the time for paying premiums.'

In each case, it is provided that the policy and the application attached constitute the entire contract. The policies and the provisions relied upon are substantially the same, differing only in detail as pointed out.

The period of disability extended from April 5, 1933, to the death of insured, August 21, 1933, a period of time which had wholly expired before any formal proofs of disability were furnished the insurance company itself, although the local agent had been acquainted with Mr. Hallowes' condition and had agreed to prepare the proofs as soon as he could get the affidavits from the attending physicians, but before this could be done Mr. Hallowes died. The only evidence of the furnishing of proofs of disability to the company itself under either of the policies are the proofs furnished by the Executors after the death of the insured.

It will be noted that the policy does not expressly provide how proof of disability shall be made. Nor does the first policy above referred to expressly provide to whom the proof shall be made. The second policy implies that the proof shall be made to the company itself by saying: 'Whenever the company receives due proof', etc.

The evidence submitted upon the trial of these cases in the Civil Court of Record shows that the insured, Mr. William A Hallowes, Jr., was stricken with what proved to be a fatal disease on April 5, 1933, and was totally and permanently disabled within the meaning of the policy from that time until his death on August 21st following. Early in the morning of April 5th he became suddenly very weak and fell to the floor. Dr. Stanley Erwin, who lived near by, was immediately summoned and decided that he had suffered an internal hemorrhage. An ambulance was summoned and he was taken immediately to the nearest hospital, in a very serious condition. Dr. Robert McIver was called and found that the hemorrhage had subsided and that an immediate operation was not necessary. He was given a blood transfusion and a few days later operated upon to remove an ulcer of the duodenum, the breaking of which had caused the hemorrhage. His condition following the first operation proved very serious and such conditions developed that a second operation became necessary on May 8th. While he gained some strength after this operation his stomach did not function and other organs gave trouble. He was nourished through intravenous injections. On May 24th Mr. Hallowes was taken by Dr. McIver, who was accompanied by Mrs. Hallowes and a trained nurse, to a famous specialist in Philadelphia. After two weeks under his treatment he gained sufficient strength...