Jefferson Standard Life Ins. Co. v. Pierce

• Decision Date: 05 May 1936
• Citation: 264 Ky. 698,95 S.W.2d 579
• Parties: JEFFERSON STANDARD LIFE INS. CO. v. PIERCE.
• Court: Kentucky Court of Appeals

95 S.W.2d 579

264 Ky. 698

JEFFERSON STANDARD LIFE INS. CO. v. PIERCE.

Court of Appeals of Kentucky

May 5, 1936

Rehearing Denied June 19, 1936.

Appeal from Circuit Court, Livingston County.

Action by James Marion Pierce against the Jefferson Standard Life Insurance Company. From an adverse judgment, the defendant appeals.

Affirmed.

Eaton &amp Boyd, of Paducah, for appellant.

Charles Ferguson and J. R. Wells, both of Smithland, for appellee.

RICHARDSON Justice.

A verdict in favor of James Marion Pierce on account of total and permanent disability under a policy, issued and delivered to him by the Jefferson Standard Life Insurance Company, was rendered for "the sum of $50 per month, beginning February 1, 1933, up to and including October 1, 1934, or a total of twenty-one payments aggregating $1,050," "with interest on each payment due the first of each month beginning February 1st, 1933, and ending October 1st 1934, at the rate of 6% per annum."

The disability claimed is tuberculosis of the lungs.

The petition contains appropriate and sufficient allegations to state a cause of action for disability benefits on the stipulations in the policy which is made an exhibit to it. It was traversed by answer.

And certain provisions of the policy and Pierce's failure to comply therewith are pleaded as a bar to a recovery. These provisions read:

"In case of default in the payment of any premium, or installment of premium, or note given for any renewal premium or portion thereof, this policy shall cease and determine and the payments received hereon shall become the property of the company, except as specified on second page hereof."

"If while this policy is in force, and before the anniversary of this policy on which insured's age at nearest birthday is sixty years, the company shall be furnished, during the lifetime of the insured and during the period of disability as herein defined, with due proof that the insured has become totally disabled by bodily injuries or disease and has been continuously and wholly prevented thereby for four or more consecutive months from engaging in any occupation or employment whatsoever for remuneration or profit, the company by endorsement upon the policy will agree:

"(a) To waive the premiums or installments thereof which shall become payable during such period of continuous total disability, beginning with the premiums, or installment thereof, the due date of which next succeeds the date of commencement of such disability; provided, however, that in no event shall a premium or installment thereof be waived, the due date of which preceded by more than six months the receipt, at the home office of the company, of written notice of such disability. However, if any premiums or installments thereof that became due during such disability are in default before receipt at the home office of the company of written notice of such disability such premiums or installments shall be waived, provided the written notice of such disability is received at the home office within six months of the due date of the first such premium or installment thereof in default; or if such disability commenced within the grace period allowed for payment of the first such premium or installment thereof in default, the insured shall be liable to the company for said first premium or installment thereof in default, with interest at six per cent per annum, and succeeding premiums or installments which shall have become payable during such disability shall be waived, provided the written notice of such disability is received at the home office within six months of the due date of the first such premiums or installment thereof in default.

"(b) To pay to the insured during the further continuance of such disability after receipt and approval of said proof, a monthly income of one per cent of the face amount of this policy, the first payment to be made immediately and succeeding payments at the end of each completed month of such disability, during the lifetime of the insured; provided no disability income shall be paid for any period of disability which preceded by more than one month the receipt of written notice of such disability at the home office of the company unless it be shown that it was not reasonably possible to give such notice and that notice was given as soon as was reasonably possible; and further provided that in no event will any disability income be paid for the first three months of such disability, nor for a fractional part of a month of such disability nor for any period of disability, which preceded by more than six months the date of receipt at the home office of the company of written notice of such disability. To be effective, the written notice required under the terms of (a) and (b) above, must be given to the company at its home office during the lifetime of the insured and during the period of continuous total disability, unless it be shown that it was not reasonably possible to give such notice and that notice was given as soon as was reasonably possible; but in no such case shall disability income be paid or premiums or installments thereof waived for any period of disability which preceded by more than six months the actual receipt at the home office of the company of written notice of such disability; nor shall disability income be paid for three months of such disability nor for a fractional part of a month of such disability."

It is specifically pleaded that, on account of Pierce's failure to comply with these provisions, the policy lapsed, and the company is not liable to him thereon.

The parties agree that Pierce was a farmer, that the policy was issued and delivered to him on December 11, 1931, and that he paid therefor $265.20 for the term of the first policy year, and that he paid no other or subsequent premium.

To substantiate his cause of action, he testified that in the spring of 1932 he became so diseased as to render him totally and permanently disabled, as these terms are used in the policy. The symptoms of his disease were and are: "A headache"; "a cough" ; "shortness of breath" ; "weakness"; "soreness through the chest"; "a tired, broken-down feeling"; if he "attempted to do any work," he "would become weaker" and "utterly fatigued" and "a little temperature would rise," and since their commencement they have existed continuously to the date of his testimony. On account of his health he was unable to and had not worked since the spring of 1932.

On July 6, 1934, Dr. Shemwell examined him and ascertained he had an infection of the throat and the back of the nose, called "pharyngitis; inflammation of the sinus on the right side of his head," and "chronic pulmonary tuberculosis, with some activities." The doctor stated that the symptoms of tuberculosis of the lungs were "a loss of weight; a tired, weak feeling, and a rise of temperature--the patient usually gets weaker and weaker and goes on down." "On physical exertion the patient is nervous, rise of temperature in the afternoon, as a rule, a slight cough"; "rales over the lungs, particularly in the apex." He declared that Pierce had rales in the upper, and were more pronounced in the "right, apex." The X-ray revealed "an increased density in the apex of each lung, more pronounced and more marked on the right side." He also stated that Pierce's "condition could have existed all the way from one to ten years prior to his examination." Dr. Willingham also examined Pierce in July, 1934, and his diagnosis was substantially that of Dr. Shemwell. Dr. Willingham had previously examined him about the 23d of March, 1934. At that time "he had a temperature of 99 2/3, pulse rate about 100; blood pressure of 140 systolic--diastolic 90" ; "a very pronounced case of tonsilitis, sore throat; sinusitis, soreness in one side of the face." He failed by a mere physical examination to make a diagnosis of his disease to be tuberculosis. His diagnosis at that time was "Pierce's ailments were chronic rheumatism, chronic tonsilitis, paroxysms of headaches," causing his "disability as temporarily total," which he reported to Pierce. At the July examination he examined Pierce with the X-ray which confirmed his diagnosis of tubercular activity at that time, including the ailments discovered by him in March, from a mere physical examination. He explained that his examination in July was complete, with X-ray, and Pierce's lungs were tubercular. Dr. Shemwell was recalled and stated that at the time he examined Pierce "he had a temperature of 99 2/5 140 systolic, 90 diastolic," and an X-ray picture of his lungs showed a tubercular condition.

Roy Cook, Mark Little, John Farris, and E. T. Hardin, neighbors of Pierce, were permitted over the objection of the insurance company to express their opinions as to Pierce's health; some of them as to his ailment and inability to work for two years next before the trial. It was improper for either of them to testify as to what ailed Pierce, North American Acc. Ins. Co. v. Caskey's Adm'r, 218 Ky. 750, 292 S.W. 297; or express an opinion as to his ailments, Sovereign Camp W. O. W., v. Morris, 212 Ky. 201, 278 S.W. 554; or to express an opinion whether his physical condition was such that he could, or could not, do any labor, Cincinnati, N. O. & T. P. R. Co. v. Ross, 219 Ky. 824, 294 S.W. 460; ÆEtna Life Ins. Co. of Hartford Conn., v. Prater's Adm'x, 259 Ky. 665, 83 S.W.2d 17; Equitable Life Assur. Soc. of U.S. v. Green, 259 Ky. 773, 83 S.W.2d 478.

The prevailing rule is "that lay witnesses may testify as to apparent vigor, strength, and physical condition of another person and as to the presence or absence in such person of symptoms indicating forms of disease so common and well understood as...