Magill v. Travelers Ins. Co., 12451.

• Decision Date: 07 April 1943
• Docket Number: No. 12451.,12451.
• Citation: 133 F.2d 709
• Parties: MAGILL v. TRAVELERS INS. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

133 F.2d 709 (1943)

MAGILL v. TRAVELERS INS. CO.

No. 12451.

Circuit Court of Appeals, Eighth Circuit.

February 23, 1943.

Rehearing Denied April 7, 1943.

J. L. London, of St. Louis, Mo. (Phineas Rosenberg, of Kansas City, Mo., and Leahy, Walther & Hecker, of St. Louis, Mo., on the brief), for appellant.

Vincent L. Boisaubin, of St. Louis, Mo. (James C. Jones, Jr., and Jones, Hocker, Gladney & Grand, all of St. Louis, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

Rehearing Denied April 7, 1943. See 134 F.2d 612.

SANBORN, Circuit Judge.

This action was brought by the conservator of Roy A. McClintic, an insane person, to recover disability benefits under a $5,000 policy of life insurance issued by the Travelers Insurance Company to McClintic in 1921. The policy contained the following provision:

"Settlement in the Event of Permanent Total Disability.

"After one full annual premium shall have been paid upon this contract and before a default in the payment of any subsequent premium, if the Insured shall furnish the Company with due proof that he has since such payment, prior to the maturity of the endowment and before having attained the age of 60, become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the Company will waive the payment of any future premiums which may fall due on this contract during such disability, and the premiums so waived will not be deducted in any settlement of the contract. Beginning six months after receipt of due proof of permanent total disability sustained as aforesaid the Company will pay to the Insured each month, so long as he shall live and suffer such disability, an amount equal to $10 for each $1,000 of insurance stated on the first page hereof, such payments to be in addition to all other benefits hereunder provided. The Insured shall not have the right to commute such monthly instalment payments."

The premium due upon the policy on May 27, 1925, was not paid when due or within the grace period of thirty-one days thereafter. There was a sufficient amount to the credit of the policy to extend the insurance to June 9, 1925. No proof that the insured had become permanently totally disabled while the policy was in force was furnished to the company prior to June 27, 1925. On January 20, 1939, the insured was adjudged insane by the County Court of Sangamon County, Illinois, and on April 10, 1939, a conservator was appointed for him.

On May 6, 1939, counsel for the conservator wrote to the company as follows:

"Mr. Roy A. McClintic was committed to the Jacksonville State Hospital for the insane on August 6, 1927 and is now in that institution. For a long time prior to said commitment Mr. McClintic was insane and had insane delusions until he was finally committed on August 6, 1927.

"Under the above mentioned policy of insurance Mr. McClintic was entitled to disability benefits as provided for in said policy and was further entitled to have his policy kept in full force and effect by the waiver of premium provisions found in said policy. Mr. McClintic was totally and permanently disabled during the time said policy was in effect and as counsel for Henry E. McClintic, Guardian and Conservator of the Estate, we do make demand upon you for payment of all sums due as benefits under the above mentioned policy and do demand that said policy be reinstated and kept in full force and effect, as provided for therein because of his total and permanent disability.

"We have been informed that on two occasions during the time Mr. Roy McClintic was disabled you were given notice of his aforesaid disability.

"If there is any further information you desire, we will be glad to furnish the same upon request."

The company did not respond to this demand, and in 1940 this action was commenced.

The claim of the conservator was, in substance, that, while the policy was in force and in January, 1925, the insured became permanently totally disabled, within the meaning of the policy, by "bodily disease" (dementia praecox due to syphilis), and was thereafter incapacitated from making proof of disability as required by the policy, and that he was entitled by the terms of the policy to the waiver of premiums and to disability benefits from and after January, 1925. In other words, the conservator claimed that the policy had remained in force through waiver of premiums, and that disability payments were due the insured from the inception of his permanent total disability.

The company defended upon the grounds that the policy lapsed June 9, 1925; that due proof of permanent total disability had never been furnished; that the making of such proof was a condition precedent to the right to the waiver of premiums and to disability benefits; that the accrual of the right to disability benefits could not arise until six months after the receipt of proof; that the insanity alleged in the complaint is not a disability arising from "bodily injury or disease" within the meaning of the policy; and that the insured was not permanently totally disabled as alleged and was not incapacitated from furnishing proof.

The case was tried to a jury. The plaintiff's (appellant's) evidence tended to prove that, prior to the lapse of the policy, the insured had become insane as the result of syphilis, and that his insanity amounted to permanent total disability within the meaning of the policy and incapacitated him from furnishing proof of his disability. The evidence of the company tended to prove that the insured had not become permanently totally disabled from insanity prior to the lapse of his policy.

At the close of the evidence, the company moved for a directed verdict on the grounds that, since no proof of disability had been furnished as required by the policy, no liability had accrued; that the evidence was insufficient to establish that the insured was incapacitated from furnishing proof; and that insanity is not an excuse for failure to furnish proof, and is not a "bodily disease." The court denied the motion for a directed verdict, and submitted the case to the jury.

The jury was, in effect, instructed that if it found that the insured was permanently totally disabled by reason of insanity prior to June 27, 1925, and that he failed to furnish the company with due proof of his disability prior to that date because "he did not have mind, mentality or judgment enough to understand or comprehend the requirements or condition of the policy that proof of his disability had to be furnished to the defendant prior to a default in the payment of the premium due under said policy on May 27, 1925," and that if the jury further found that the insured did not at any time between June 27, 1925, and January 20, 1939, when he was adjudged insane, have lucid intervals when he had sufficient mind or mentality to comprehend and understand the requirement or condition of the policy that proof of his disability must be furnished to the company, then the plaintiff was entitled to recover at the rate of $50 per month from the time the jury found that he became permanently totally disabled.

The jury was directed to return a general verdict, and the following interrogatories were submitted:

"The jury will return with their verdict an answer to the following interrogatories, and the answer of the jury to such interrogatories must be either `Yes' or `no.'

"Interrogatory No. 1.

"Was the insured during the entire period between May 27, 1925 and June 27, 1925 insane to such an extent or degree that he did not have mind, or mentality, or judgment enough to understand or comprehend the requirement or condition of the policy that proof of his disability had to be furnished to the company before he would be entitled to disability benefits provided for under said policy?

"If the answer of the jury to Interrogatory No. 1 is `Yes,' then the jury will answer Interrogatory No. 2. If, on the other hand, the answer of the jury to Interrogatory No. 1 is `No,' then they will not answer Interrogatory No. 2.

"Interrogatory No. 2.

"Was the insured at all times between June 27, 1925, and January 20, 1939 insane to such extent or degree that he did not have mind or mentality enough to understand or comprehend the requirement of the policy that proof of his disability had to be furnished the company before he would be entitled to the disability benefit provided for under said policy?"

The jury answered the first interrogatory in the negative and returned a verdict for the company, upon which judgment was entered. This appeal is from the judgment.

The plaintiff challenges many of the court's instructions, but there are two main questions for decision:

1. Did the evidence which tended to prove that the insured, while his policy was in force, became permanently totally disabled by reason of insanity, and the evidence which tended to prove that his failure to furnish proof of disability then and thereafter was due to his incapacity to furnish it, make a prima facie case of liability?

2. If insanity was an excuse for the failure of the insured to furnish due proof of disability while his policy was in effect, did the court correctly instruct the jury as to the...