Hudson v. Travelers Ins. Co.

• Decision Date: 08 May 1937
• Docket Number: 33064.
• Citation: 145 Kan. 732,67 P.2d 593
• Parties: HUDSON v. TRAVELERS INS. CO.
• Court: Kansas Supreme Court

67 P.2d 593

145 Kan. 732

HUDSON v. TRAVELERS INS. CO.

No. 33064.

Supreme Court of Kansas

May 8, 1937

Syllabus by the Court.

Under accident policy providing for specified payments for enumerated losses including loss of hand and that, if injury did not result in any of losses enumerated but totally disabled insured, insurer would pay weekly indemnity, insured who suffered total permanent disability as incidental result of loss of hand held entitled to recover only amount specified for such loss, and not weekly indemnity for total disability, under second provision of policy.

Mere existence of cloud or denial of right, assertion of unsound claim, existence of conflicting claims, or uncertainty or insecurity occasioned by new events constitutes operative facts which are cause for action creating "right of action," within declaratory judgment act (Gen.St.1935 60-3127, 60-3132).

Relief under declaratory judgment act should be refused because of availability of another remedy only where court believes that more effective relief can and should be obtained by another procedure, and that for that reason a declaration will not serve a useful purpose (Gen.St.1935, 60-3127, 60-3132).

In action on accident policy, where insured alleged in first two causes of action that he had performed all conditions precedent, that policy was in effect at time of accident, and that insurer had waived nonpayment of premium due, with prayer for coercive relief, insured held not entitled to join third cause of action under declaratory judgment act containing same allegations contained in first and second causes of action with prayer for judgment declaring that premium had been paid, or that insurer had waived nonpayment (Gen.St.1935, 60-3127, 60-3132).

1. Where an accident insurance policy in Part A provided for specified payments for certain designated losses, and in Part B provided that, if the injury did not result in any of the losses enumerated in Part A, but totally disabled insured the company would pay him a weekly indemnity, the insured who suffered a total permanent disability as an incidental result of one of the injuries specified in Part A, can recover only the amount specified for such loss, and not the weekly indemnity for total disability under Part B.

2. In an action upon an accident insurance policy in which the first two causes of action contained allegations that plaintiff had performed all conditions precedent, that the policy was in effect at the time of an accident, and that the defendant had waived nonpayment of the premium due upon the policy and the prayers are for coercive relief, held, the plaintiff may not join a third cause of action under the declaratory judgment act containing the same allegations contained in the first and second causes of action, the prayer of which is for judgment declaring that the premium has been paid or that the company has waived nonpayment.

Appeal from District Court, Harvey County; John G. Somers, Judge.

Action by Edgar G. Hudson against the Travelers Insurance Company. Judgment for defendant, and plaintiff appeals.

Harry W. Hart, Glenn Porter, Enos E. Hook, W. Getto McDonald, and Dwight S. Wallace, all of Wichita, and W. H. von der Heiden A. E. Morgan, and C. A. Morgan, all of Newton, for appellant.

C. H. Brooks, Howard T. Fleeson, Fred W. Aley, Carl G. Tebbe, Wayne Coulson, and Paul R. Kitch, all of Wichita, for appellee.

ALLEN Justice.

The action was on an accident policy. Defendant's demurrer to plaintiff's petition was sustained, and plaintiff appeals.

The policy sued on purports to provide "indemnity for loss of life, limb, sight and time, caused by bodily injuries effected through accidental means, to the extent herein provided."

The policy states that the defendant company "does hereby insure Edgar G. Hudson *** against loss resulting from bodily injuries, effected directly and independently of all other causes, through accidental means, *** as specified in the following Schedule, subject to the provisions and limitations hereinafter contained."

The policy provides that "the Principal Sum of this Policy is *** $3750.00 *** Dollars" and that "the Single Weekly Indemnity is *** Twenty-five and no/100 *** Dollars."

Part A of the policy provides: "If such injuries shall wholly and continuously disable the Insured from the date of accident from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability but within two hundred weeks from the date of accident, shall result independently and exclusively of all other causes in any one of the losses enumerated in this Part, or within ninety days from the date of the accident, irrespective of total disability, result in like manner in any one of such losses, the Company will pay the sum set opposite such loss and in addition weekly indemnity as provided in Part B to the date of death, dismemberment, or loss of sight; but only one of the amounts so specified in the additional weekly indemnity will be paid for injuries resulting from one accident."

Then follows a schedule which provides that for loss of either hand or foot the defendant would pay one-half of the principal sum. At the end of this schedule appears this sentence: "The Payment in any such case shall end this policy."

Part B of the policy provides:

"Or, if such injuries, independently and exclusively of all other causes, shall wholly and continuously disable, the Insured from the date of accident from performing any and every kind of duty pertaining to his occupation, the Company will pay, so long as the Insured lives and suffers such total disability, weekly indemnity at the rate hereinbefore specified.

"Or, if such injuries, independently and exclusively of all other causes, shall wholly and continuously disable the Insured from date of accident from performing one or more important daily duties pertaining to his occupation, or for like continuous disability following total loss of time, the company will pay during the period of such disability, but not exceeding twenty-six consecutive weeks, a weekly indemnity of one-half of the sum specified in this Part for total loss of time. No payment of weekly indemnity shall be made in case of any loss enumerated in Part A, except as therein provided."

Plaintiff in his petition alleges three separate causes of action.

In his first cause of action plaintiff demands judgment for $7,100, covering the following specific items:

Loss of left hand ........................................... $1,875

Weekly indemnity for 202 weeks @ $25 ......................... 5,050

Surgical benefits ............................................ 50

Additional indemnity while in hospital, ten weeks @ $12.50 ..... 125

------

$7,100

The second cause of action alleges total disability resulting from accidental injury; that at the time of the accident the plaintiff was 39 years of age; that his life expectancy was 28 9/10 years; that plaintiff is entitled to recovery for said period of time at $25 per week, making a total of $37,570.

The third cause alleges that certain controversies and contentions have arisen be-been plaintiff and defendant as to the authority of defendant's agent to receive premiums after the due date thereof, as to whether defendant waived the prompt payment of premiums on the policy. That by reasons of the matters alleged plaintiff is in a dilemma and there is uncertainty and insecurity attendant upon said controversy and plaintiff prays for a declaratory judgment and for further relief.

Defendant demurred to plaintiff's petition upon the ground that several causes of action were improperly joined, and upon the ground that none of the causes of action contained allegations sufficient to constitute a cause of action. The court sustained the demurrer, and plaintiff appeals.

Part A of the policy quoted above provides for the payment of the amount set opposite the specific loss "and in addition weekly indemnity as provided in Part B to the date of death, dismemberment, or loss of sight; but only one of the amounts so specified and the additional weekly indemnity will be paid for injuries resulting from one accident."

Part B provides that in case of total disability, the company will pay as long as the insured lives and suffers such total disability, a weekly indemnity of $25.

Plaintiff claims that under a proper construction of the terms of the policy that as plaintiff had suffered the loss of a hand, and in addition had suffered total disability, that he would be entitled to recover weekly indemnity for such total disability so long as he might live and suffer such total disability, in addition to one-half of the principal sum for the loss of his left hand.

Defendant points to the language in Part A which specifically provides that before insured can be entitled to the gross sum contained in the schedule in Part A, his accidental injuries must "wholly and continuously disable the Insured from the date of accident from performing any and every kind of duty pertaining to his occupation," although no particular length of total disability is required. Defendant insists that this clause completely negatives any intent that if insured was totally disabled from any loss specified in Part A he could recover both the gross sum for specific loss in Part A and the weekly indemnity under Part B for total disability. That he was required to be...