Kuhnle v. Mutual Life Ins. Co. of New York

• Decision Date: 17 March 1944
• Docket Number: 29183.
• Citation: Kuhnle v. Mutual Life Ins. Co. of New York, 147 P.2d 281, 20 Wn.2d 255 (Wash. 1944)
• Parties: KUHNLE v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Washington Supreme Court

147 P.2d 281

20 Wn.2d 255

KUHNLE v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 29183.

Supreme Court of Washington

March 17, 1944

Department 2.

Action by Albert Kuhnle against the Mutual Life Insurance Company of New York to recover total disability benefits under a life insurance policy. From a judgment for plaintiff, defendant appeals.

Reversed and cause dismissed.

Appeal from Superior Court, Grays Harbor County; Wm. E. Campbell judge.

Evans McLaren & Lane, of Seattle (Louis W. Dawson, of New York City, of counsel), for appellant.

Phil K Eaton, of Olympia, for respondent.

ROBINSON Justice.

This is an action for the recovery of total permanent disability benefits, under a life insurance policy issued by the appellant on December 2, 1921, to Albert Kuhnle. The accident alleged to have caused total disability occurred April 16, 1935. A claim was made against the appellant insurance company in May, 1936, and was rejected by it in November, 1936. This action was not brought until May, 1942. In the meantime, the respondent continued to pay his premiums in full. The benefits which the policy provides if total permanent disability be established are thirty dollars per month and a waiver or remission of the annual premium of the policy of $71.73 during the period of disability. Of this amount, $4.05 represented the charge for the disability benefits. The object of this action was to establish a status of total permanent disability within the terms of the policy, and to recover thirty dollars per month from May, 1936, to date of trial (February, 1943) and the annual premiums paid for six years (1936-1941, inclusive).

The appellant joined issue on the question of total disability and pleaded estoppel as an affirmative defense, based upon the fact that the respondent had, without objection or protest of any kind, continued to pay premiums for six years after his claim, that he was no longer liable therefor, had been rejected. Respondent admitted the factual allegations of this affirmative defense.

The respondent was born in Germany in 1894, and came to this country as a boy. He spent a year and a half in California, and came to Washington in 1909. He had no schooling in this country, can speak and read English, but cannot write, except his own name. From 1909 until his injury in 1935, a period of twenty-six years, he worked in the woods as a rigger, hook tender, and for a time supervised a logging camp. Being under the Workmen's Compensation Act, Rem.Rev.Stat. § 7673 et seq., he had, by the time this case was tried, received from his industrial insurance claims $8,440, and is still receiving a pension of seventy dollars per month. He also received eight hundred dollars from a group policy furnished by his employer, the Simpson Logging Company.

His industrial insurance was not recovered without litigation. Phases of the matter hav been Before this court on two occasions: Kuhnle v. Department of Labor and Industries, 12 Wash.2d 191, 120 P.2d 1003, and Kuhnle v. Department of Labor and Industries, 15 Wash.2d 427, 130 P.2d 1047. The second of these cases may be disregarded. The first seems to have had an effective, but, we think, an unjustifiable, influence upon the trial court's decision in this case.

The action was tried by the court without a jury. At the close of the trial, the trial judge took the matter under advisement, and, in due course, filed a memorandum decision in which he stated that he was of the opinion that the respondent was not wholly disabled, but that he would be compelled to so hold by two decisions of this court. The memorandum decision is short and may be quoted in its entirety:

'After carefully reading the excellent briefs written by counsel on both sides and considering the evidence which I heard at the trial, I am of the opinion that the case of Storwick v. Reliance Life Ins. C., 151 Wash. 153 , is still the law of this state and controlling in this case.

'I tried the Industrial Insurance case of Kuhnle, the plaintiff. At that time I was of the opinion he was not totally disabled. This case was appealed to the Supreme Court. The Supreme Court reversed the case and held that he was totally disabled and allowed him a pension. I am still of the opinion that he is not totally disabled, but I am controlled by the Storwick case.

'Judgment will be for the plaintiff.' The appellant promptly filed a motion 'for judgment notwithstanding memorandum decision of the court.' There was attached to the motion, and is made a part of the record, a brief contending that this court has never held that the respondent was totally disabled, and that the instant case is readily distinguishable from the Storwick case. The trial judge filed another memorandum decision denying the motion, stating that, 'after duly considering the same I am still of the opinion which I had at the time I decided this case.' He then entered judgment for the plaintiff in the sum of $3,735.81.

The recital in the memorandum decision that this court held that the respondent was totally disabled can only have reference to the first of the Kuhnle cases, above cited. That case came to this court in the following manner: Kuhnle, being dissatisfied with a partial disability award of the department of labor and industries and claiming total permanent disability, appealed to its joint board. It affirmed the decision of the department. He then appealed the matter to the superior court of Grays Harbor county and demanded a trial by jury. That court sustained a challenge to the sufficiency of the evidence to warrant submission of the case to the jury, and a judgment of dismissal was entered. The matter was then appealed to this court. Our opinion in the case opens by saying [12 Wash.2d 191, 120 P.2d 1004]:

'The question raised by this appeal is whether or not there was evidence that claimant was totally disabled, warranting submission of that question to the jury.'

We then quoted the following rule from Alfredson v. Department of Labor and Industries, 5 Wash.2d 648, 105 P.2d 37:

'If the evidence introduced at the hearing Before the joint board offers room for a difference of opinion in the minds of reasonable men, then the case must be presented to the jury.'

We then stated the evidence most favorable to the appellant; for, when such a challenge is made, that is the only evidence which is really material, and, having done so and having discussed the Storwick case and other pertinent decisions, rendered our decision, as follows:

'Applying these principles, we think there was sufficient evidence in the record to justify submission of the case to the jury, and that the court erred in deciding, as a matter of law, that claimant was not permanently totally disabled.

'The judgment appealed from is reversed and the court below is directed to grant appellant a new trial.'

Clearly, we made no decision on the merits. We held no more than this, that, accepting the evidence favorable to Kuhnle and disregarding evidence to the contrary, reasonable men might believe that he was totally disabled.

We are required to inquire further as to what effect, if any, the decision in that case should have on the decision to be made in this; for, under a caption in respondent's brief entitled 'Law of the Case,' it is said:

'We contend that the law of this case is decided by the respondent's former case, Kuhnle v. Department of Labor and Industries, 12 Wash.2d 191 [120 P.2d 1003].'

Surely, it is not meant that that case established the law of this case, as the term 'law of the case' is understood in legal parlance. The parties to the two cases are not the same. The rights asserted in the two cases are not the same. In the case cited, the plaintiff asserted a right created by statute. In this, he is merely attempting to enforce a contract. Even if respondent means only that the general principles of law announced in that case are determinative of the question raised in this, the statement is inaccurate because a general statement of the law in an opinion must always be considered in the light of the facts then Before the court.

The evidence Before the court in this case is very different from the evidence in the Kuhnle case, reported in 12 Wash.2d 191, 120 P.2d 1003. The evidence in that case was the testimony taken Before the joint board. It completed the taking of that testimony on September 18, 1938. Much of the evidence in this case, and, indeed, almost all of the evidence upon which the appellant places its greatest dependence, relates to matters and things which occurred after September 18, 1938. For example, there is proof that, when applying for a license to operate a truck, the appellant made oath on March 27, 1939, that he had full use of his arms and legs, and had never been afficted with 'dizzy spells.' There is testimony also that he conducted a log hauling operation, driving a large truck and trailer himself, and alone, on one-half of the trips, of which there were 573 in all. This occurred during the latter part of 1940, and during all of 1941. This matter will be discussed later in more detail. We refer to it at this point merely to show that it could not have been considered in the Kuhnle case in 12 Wash.2d 191, 120 P.2d 1003, since the last of the evidence in that case was taken in September, 1938. That case has the same claim to consideration in this case an any other case which deals with the legal principles which govern the determination of total disability, and no more.

We come now to the more serious question involved. If the respondent was not totally disabled, the case should have been dismissed. The trial judge, after hearing all of the evidence, said that he did not believe that respondent was totally disabled, but...