Lando v. Equitable Life Assur. Soc. of the United States

• Decision Date: 06 September 1935
• Docket Number: No. 19739-K.,19739-K.
• Citation: 11 F. Supp. 729
• Court: U.S. District Court — Northern District of California
• Parties: LANDO v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

11 F. Supp. 729

LANDO v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 19739-K.

District Court, N. D. California, S. D.

September 6, 1935.

Daniel R. Shoemaker and Harry I. Stafford, both of San Francisco, Cal., for plaintiff.

Pillsbury, Madison & Sutro, of San Francisco, Cal., for defendant.

ST. SURE, District Judge.

Action to recover disability payments under life insurance policies.

The complaint states six causes of action, each of which alleges issuance by defendant to plaintiff of a policy of life insurance wherein, it is alleged, defendant agreed to make certain payments to plaintiff in case of his total disability, after a specified period of elapsed time, at a specified rate per month, so long as such disability should continue, and to waive all premiums due under the policy during the continuance of such disability; that ever since October 1, 1933, to the time of filing suit, plaintiff has been totally and continuously unable to engage in any business or occupation or perform any work whatsoever for remuneration or profit; that while plaintiff has performed all covenants on his part to be performed, defendant has failed and refused to pay any of the respective sums due under the policies. A supplement to the complaint alleged total disability for a period subsequent to filing original complaint, and the prayer was for an increased amount of judgment.

The answer admitted issuance of the policies, pleaded the pertinent provisions thereof, admitted nonpayment of the sums alleged to be due, and denied that any sum was due under the terms of the policies.

The case was tried before the late Judge Kerrigan, and is now before this court for decision.

Each of the policies contains substantially the same definition of total disability, to wit: Disability shall be deemed to be total when it prevents the insured from engaging in any occupation or performing any work for compensation of financial value. It is provided in the first policy pleaded that if the insured, before attaining the age of sixty, and the policy is then in full force and effect, "shall become physically or mentally incapacitated to such an extent that he is and will be wholly and presumably permanently unable to engage in any occupation or perform any work for compensation of financial value, and furnishes due proof thereof and that such disability has then existed for sixty days," the defendant will waive premiums during the continuance of the disability and pay a specified sum per month, subject to the following conditions: "The income shall be payable six months after receipt of proof of disability," etc.

The next two policies pleaded provide that upon due proof that insured has become "totally and permanently disabled by bodily injury or disease" the company will pay the sums specified and waive premiums during continuance of such disability and "such total disability shall be presumed to be permanent when it is present and has existed continuously for not less than three months."

In the last three policies it is provided that "total disability is presumably permanent only (1) when due proof is received by the Society that it will presumably exist continuously during the remainder of insured's life — then from the date upon which such proof is received * * *; or (2) when it has existed continuously for three months — then from the date of the expiration of such three months."

The burden of proof is upon plaintiff to establish the fact of total and permanent disability, as those terms are used and qualified in the policies. Missouri State Life Insurance Co. v. West (C. C. A.) 67 F.(2d) 468.

The pleadings and undisputed evidence establish that plaintiff is a man approximately 36 years of age, who, between April, 1921, and June, 1930, purchased the policies sued upon; that under the policies there are provisions for an aggregate monthly payment of $360 for total and permanent disability duly proved; that all of the premiums due and payable by plaintiff have been duly and regularly paid, and that each of the policies was valid and subsisting at the time of the alleged disability and at the commencement of suit; that plaintiff is the owner of and engaged in a small window shade and Venetian blind business in San Francisco; that as such owner his time is largely given to soliciting business, selling and installing shades and blinds; that on December 1, 1933, he had an acute illness which necessitated medical attention; that the illness was diagnosed as "duodenal and stoma (jejunal gastric) ulcers, chronic history extending for a number of years"; that this illness was a recurrence of a duodenal ulcer in the proximal jejunum for which plaintiff underwent a surgical operation in August, 1930; that between December 1, 1933, and November 1, 1934, plaintiff was, on several occasions for periods varying from a few days to a few weeks, wholly unable to engage in any occupation or perform any work for compensation.

Plaintiff testified that his illness for which he claims disability insurance began in October, 1933; that he had an acute attack December 1, 1933; that in January, 1934, he was feeling better and the doctor suggested a little exercise or running around might take his mind off his illness, and that to try to prove to himself that he could go back to work he would, at times, "do a little house cleaning for a day and be on my back for two or three days"; that in February he went by airplane to Los Angeles, where he remained ten days, part of the time lying in the sun; that in April he had hemorrhages, and in May was in the hospital two weeks and in June for four days; that in July he went on a short fishing trip on the third day of which he had another hemorrhage and returned home; that in August he had a blood transfusion, and thereafter his diet was changed and he gained weight and returned to work November 2d or 3d; that he has been doing partial work ever since; that from October 27, 1933, to November, 1934, he was wholly unable to do any work; that on April 2, 1934, he filed with defendant a claim for total disability supported by a medical report of his physician; that he submitted no other claim or proof than that of April 2d.

On cross-examination plaintiff admitted that while he was confined to his home early in his illness he might have signed a few checks in connection with his business; that in January, 1934, he called upon and talked with the manager of the Clift Hotel, which was then being remodeled, with respect to certain merchandise for which he was sole agent in San Francisco, and that plaintiff's employee measured the installation and subsequently mailed a bid for the job; that occasionally he drove his car and occasionally walked from his home to his place of business and...