Lee v. Metropolitan Life Ins. Co.
| Decision Date | 20 May 1940 |
| Parties | FRANK A. LEE, RESPONDENT, v. METROPOLITAN LIFE INSURANCE CO., APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Randolph County.--Hon. A. R. Hammett Judge.
AFFIRMED (on condition of remittitur).
Harry Cole Bates, Michael, Blackmar, Newkirk, Eager & Swanson and Hunter & Chamier for appellant.
(1) The court erred in rendering judgment for respondent because under the law and the evidence of this case, he was not entitled to recover. (a) Because the evidence shows that plaintiff was not totally and permanently disabled during the period of time claimed, but, at the most, was only totally and temporarily disabled, which disability is not covered by the contract in question. Pearlman v. Metropolitan Life Ins. Co. (Pa.), 9 A.2d 432; Garabedian v Metropolitan Life Ins. Co., 135 Pa.Super. Ct. 320; Wolff v. Prudential Ins. Co. of America (R. I.), 3 A.2d 897; Richards v. Metropolitan Life Ins. Co. (Wash.), 55 P.2d 1067; Shipp v. Metropolitan Life Ins. Co. (Miss.), 111 So. 453; Read v. Metropolitan Life Ins. Co. (N. C.), 174 S.E. 307; Cassens v. Metropolitan Life Ins. Co. (Fla.), 154 So. 522; Lewis v. Metropolitan Life Ins. Co. (La.), 142 So. 262; Leibson v. Metropolitan Life Ins. Co. (Ill.), 18 N.E.2d 99; Yoffa v. Metropolitan Life Ins. Co. (Mass.), 23 N.E.2d 108; Metropolitan Life Ins. Co. v. Noe (Tenn.), 31 S.W.2d 689; State ex rel. Mutual Benefit Health and Accident Association v. Trimble et al. (Mo.), 68 S.W.2d 685; State ex rel. Mutual Life of New York v. Shain et al. (Mo.), 126 S.W.2d 181; (b) Because his proof of disability received by appellant on June 23, 1937, was that he was not totally and permanently disabled at that time. Jacoby v. New York Life Ins. Co. (Mo. App.), 77 S.W.2d 841, 845; Porter v. Equitable Life Assurance Society of the United States (Mo. App.), 71 S.W.2d 766, 773; Farage v. John Hancock Mutual Life Ins. Co. (Mo. App.), 81 S.W.2d 344; State ex rel. v. Trimble, 303 Mo. 266, 259 S.W. 1052; Mackenzie v. Equitable Life Assurance Society of the United States (N. Y.), 251 N.Y.S. 528; Wetherall v. Equitable Life Assurance Society of the United States (Mich.), 263 N.W. 745; Metropolitan Life Ins. Co. v. Blue (Ala.), 222 Ala. 665, 133 So. 707, 79 A. L. R. 852. (c) Because the court's findings and declarations in favor of plaintiff are based on speculation, surmise and conjecture and not on competent, substantial evidence. Verdicts and findings of juries and courts must be based on substantial evidence, on evidence which has probative force and not merely on speculation, surmise and conjecture. Van Bibber v. Swift & Co., 286 Mo. 317, 228 S.W. 69, 76; Watkins v. Bird-Sykes-Bunker, 322 Mo. 830, 16 S.W.2d 38; Keim v. Blackburn (Mo.), 280 S.W. 1046; Lindman v. Altman, 308 Mo. 187, 271 S.W. 512; Hamilton v. Ry. Co., 318 Mo. 123, 134; Levi et al. v. M., K. & T. Ry. Co., 157 Mo.App. 536, 545; Powell v. Walker, 195 Mo.App. 150, 185 S.W. 532; 23 C. J. 51. (2) The court erred in rendering judgment on the theory that the contract in question was ambiguous, as to the time when disability payments were to begin and premiums were to be waived, because the contract is clear and plain and unambiguous as to such questions. Sherman et al. v. Metropolitan Life Ins. Co. (Mass.), 8 N.E. 892, 893, 895; Grafe v. Fidelity, etc., Ins. Co. (Mo. App.), 84 S.W.2d 400; Rowan v. New York Life (Mo. App.), 124 S.W.2d 577; Feinberg v. New York Life (Mo. App.), 127 S.W.2d 82; State ex rel. v. Shain (Mo.), 127 S.W.2d 675. (3) The court erred in declaring and holding that appellant waived the time that the waiver was to begin and payments were to be made, for the reason there could be no such waiver, because furnishing proof of an insurable disability was a condition precedent to the creation of the cause of action, and this condition precedent cannot be waived and waiver can never give rise to a cause of action. Clinton v. Met. Life Ins. Co. (Mo. App.), 94 S.W.2d 1080; Sapaw v. Met. Life Ins. Co. (Mo. App.), 94 S.W.2d 1082; Anderson v. Met. Life Ins. Co. (Mo. App.), 96 S.W.2d 631; Young v. Met. Life Ins. Co. (Mo. App.), 84 S.W.2d 1065; Shepard v. Met. Life Ins. Co. (Mo. App.), 99 S.W.2d 144; White v. Met. Life Ins. Co. (Mo. App.), 107 S.W.2d 957; Meadows v. Met. Life Ins. Co. (Mo. App.), 104 S.W.2d 788; Chapman v. Met. Life Ins. Co. (Mo. App.), 132 S.W.2d 1096; Wolff v. Prudential Life Ins. Co. (R. I.), 4 A.2d 897. (4) If respondent's contention is correct, which is denied, then the verdict is excessive and erroneous for the reason that it includes waiver of premiums prior to the anniversary of the policy next succeeding the commencement of the disability. Feinberg v. New York Life Ins. Co. (Mo. App.), 127 S.W.2d 82; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489. (5) The court erred in refusing to give appellant's finding No. 16 which declared that respondent could not recover because he was not totally and permanently disabled, because he was not permanently and totally disabled and therefore was not entitled to recover. (6) The court erred in giving on its own motion finding No. 16, which declared that respondent was not totally and permanently disabled but seemed and appeared to be permanently and was totally disabled because it is contradictory and there is no evidence to support the finding that he seemed and appeared to be permanently disabled and it is therefore unsupported by evidence and based on surmise and conjecture and not on competent substantial evidence. (7) The court erred in refusing appellant's declaration No. 1, in the nature of a demurrer to the evidence, because under the law and the evidence of this case the respondent was not entitled to recover. (8) The court erred in refusing appellant's requested Declarations of Law 2, 5 and 7, and requested respondent's requested Declarations A, B, and C, because in so doing the court declared first, that the contract was ambiguous as to the disability insured against and as to the time payment of benefits and waiver of premiums should begin. This ruling is error because the contract is clear, unambiguous and not open to interpretation and, by the plain meaning of the contract, respondent was insured against total and permanent disability and not a disability in fact seeming and appearing to be permanent, but not in fact permanent, and by the plain meaning of the contract appellant was to begin payments and waive premiums for disabilities existing not more than six months prior to the receipt of the required proof; second, that there was no waiver of the requirement that there must be a disability within the period of time not more than six months immediately preceding receipt of proof, because such requirement was the condition preceding to creating the cause of action and unless proofs were furnished and there was an insurable disability within the time six months preceding receipt of proof there could be no liability or cause of action and because a cause of action can never be created by a waiver.
Thos. J. Tydings for respondent.
(1) Respondent is entitled to recover under the law and the evidence. Laupheimer v. Mass. Mut. Life Ins. Co., 24 S.W.2d 1058; Laupheimer v. N.W. Life Ins. Co., 24 S.W.2d 1062; Stoner v. N. Y. Life Ins. Co. , 90 S.W.2d 784; Thomas v. Metropolitan Life Ins. Co., 89 S.W.2d 590; Corcoran v. Metropolitan Life Ins. Co., 93 S.W.2d 1027; Heralds of Liberty v. Jones, 142 Miss. 735, 107 So. 519. (2) The supplementary contract is ambiguous both as to disability covered thereby and as to time when monthly benefits begin, and construction most favorable to respondent (insured) should be given to said contract. Swanson v. Ga. Cas. Co., 315 Mo. 1007; Black v. U. S. F. & G. Co., 316 Mo. 278; Laupheimer v. Mass. Mut. Life Ins. Co., supra; Lamaitre v. Natl. Cas. Co., 195 Mo.App. 599; O'Connor v. St. L. Am. B. B. League, 193 Mo.App. 167. (3) By denying liability upon the sole ground that respondent's disability was not permanent, appellant waived the right to object to the proof of disability, both as to the timeliness or sufficiency thereof, and also waived all other defenses, if any. Thomas v. Metropolitan Life Ins. Co., 89 S.W.2d 590; Corcoran v. Metropolitan Life Ins. Co., 93 S.W.2d 1027; Burgess v. Merc. Town Mutl. Ins. Co., 114 Mo.App. 169; Brix v. Am. Fidelity Co., 171 Mo.App. 518; Ex. Bank v. Thuringia Ins. Co., 109 Mo.App. 654. It is the rule in this State that when an insurance company denies liability and states the ground, or grounds, for such denial, it waives all grounds not so specified. In its letter of November 16, 1927, defendant denied liability on the sole ground that plaintiff had failed to report acquisition of the Willys-Knight car within thirty days. No other reason for denying liability in the letter and defendant waived its rights, if any, to deny liability on any other ground. Ash Grove Lime & P. C. Co. v. So. Surety Co., 39 S.W.2d 411; Coffe v. Surety Co., 321 Mo. 140. (4) Where an insurance policy contains repugnant clauses, the first governs, rather than the following. Lemaitre v. Natl. Cas. Co., 195 Mo.App. 599; Caine v. Physicians' Ind. Co., 45 S.W.2d 904; Kimbrough v. Natl. Pro. Ins. Assn., 35 S.W.2d 658. Policy provisions conferring benefits for total disability from disease and requiring physician's services, held repugnant to provision withholding benefits unless insured was attended by physician; hence provision withholding benefits was unenforceable. Miller v. Mut. Ben. Health & A. Assn., 56 S.W.2d 795, citing; Kimbrough v. Natl. Pro. Ins. Assn., 35 S.W.2d 654; Mathews v. Mod. Woodmen, 236 Mo. 326; State ex rel. v. Trimble, 327 Mo. 899.
Plaintiff Frank A. Lee, sued defendant, Metropolitan Life Insurance Company, for...
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