Kithcart v. Metropolitan Life Ins. Co., 8389
| Decision Date | 15 September 1932 |
| Docket Number | 8391.,No. 8389,8389 |
| Citation | 1 F. Supp. 719 |
| Parties | KITHCART v. METROPOLITAN LIFE INS. CO. KEVAN v. JOHN HANCOCK MUT. LIFE INS. CO. |
| Court | U.S. District Court — Western District of Missouri |
James R. Sullivan and Charles N. Sadler, both of Kansas City, Mo., for plaintiffs.
Meservey, Michaels, Blackmar, Newkirk & Eager, of Kansas City, Mo., for defendants.
Motions have been filed in both the above cases to strike out certain allegations of the petitions. The question presented by such motions is whether the plaintiffs are presently entitled to recover future installments in case of disability benefits.
Both plaintiffs held disability insurance contracts. These provided for the payment of specified installments upon a showing of total disability. In each case proofs of such disability were tendered, and in No. 8389 payments were actually made for a brief period, but in each case liability has been denied by the defendants. The plaintiffs, therefore, have brought suit on the policies and ask judgment for the accrued as well as for the future installments, in accordance with the life expectancy of the several plaintiffs.
Without discussing the technical allegations of the petitions, or the language of the motions filed by the several defendants, it is sufficient to say that these motions raise the specific question in each case as to the liability of an insurance company for present recovery of future installments when liability has been denied.
Plaintiffs rely especially on Federal Life Insurance Company v. Rascoe (C. C. A.) 12 F.(2d) 693, 695. This opinion was delivered by the Court of Appeals of the Sixth Circuit. The majority opinion upheld the right to recover upon the whole contract independently of its provisions for future installments.
However, it was pointed out by the court that there was no separate finding of facts in the case, which was tried to the court without the intervention of a jury. The court said: "Without such separate findings of facts, neither the evidence nor the question of law presented by it is reviewable by this court."
It was then said by the court that the plaintiff "does not rely upon an anticipatory breach, * * * but upon an actual breach, * * * coupled with an actual repudiation of the entire contract."
In order to bring the case within the doctrine of Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 786, 44 L. Ed. 953, the court said: ...
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