Maresh v. Peoria Life Ins. Co.

• Decision Date: 10 October 1931
• Docket Number: 29517.
• Citation: 133 Kan. 654,3 P.2d 634
• Parties: MARESH v. PEORIA LIFE INS. CO.
• Court: Kansas Supreme Court

3 P.2d 634

133 Kan. 654

MARESH v. PEORIA LIFE INS. CO.

No. 29517.

Supreme Court of Kansas

October 10, 1931

HARVEY and SLOAN, JJ., dissenting.

Thomas F. Doran, Clayton E. Kline, Harry W. Colmery, and M. F Cosgrove, all of Topeka, Gilbert H. Firth and C. V. Beck both of Emporia, and J. B. Wolfenbarger, of Peoria, Ill., for appellant.

Bennett R. Wheeler, S. M. Brewster, John L. Hunt, Virgil V. Scholes and Margaret McGurnaghan, all of Topeka, and O. T. Atherton and E. H. Rees, both of Emporia, for appellee.

BURCH J.

The insurance company moves for modification of the opinion heretofore filed in this case, Maresh v. Peoria Life Ins Co., 133 Kan. 191, 299 P. 934. The court is requested to delete various references to the fact of permanent disability, pleaded in the petition, established by the evidence and found by the jury, as not within the issues, and particularly to strike out the statement that an affirmed judgment is conclusive upon the subject of permanent disability. In support of the motion defendant makes the following statements:

"It [the judgment] involves the question of whether Maresh was totally and permanently disabled within the terms of the policy within the period from August 5, 1927, to December 5, 1928. ***

"All that the court was called upon to decide in this case, under its own recognition, and as pleaded by the plaintiff, was that the plaintiff was totally and permanently disabled during the period of seventeen months after his injury. *** The most that should have been said, or could possibly be said, in consonance with the admittedly recognized terms of the policy, was that an affirmed judgment is a final determination of the controversy which was, whether the plaintiff was permanently and totally disabled between August 5, 1927, and December 5, 1928, the dates covered by the judgment. ***

"The proof of that condition [permanent total disability] was in issue only for the period of August 5, 1927, to December 5, 1928. *** The ultimate fact in this suit was permanent total disability for the seventeen months' period for which the money judgment was rendered."

There is no foundation in the record for these statements. They are contrary to the contentions made by defendant in the district court, are contrary to the contentions first made by defendant in this court, and the notion of an issue of disability limited to a period of months only appears for the first time in the petition for modification.

The petition pleaded the policy. Pertinent provisions are printed in the original opinion at page 192 of the cited report. 133 Kan. 192, 299 P. 934. The policy provided that, on satisfactory proof of total permanent disability "as hereinafter defined," the company would pay a monthly income for life. The first payment was to be made immediately on receipt of proof, and subsequent payments were to be made on the first day of each month thereafter, as long as the insured should live and be totally and permanently disabled, "as hereinafter defined." Total and permanent disability was then defined as disability due to accident or disease such as to prevent the insured "then and at all times thereafter" from performing any work or conducting any business for compensation or profit. The definition covered both totality and permanency. Permanently is the antithesis of temporarily, and permanency for all times may not be turned into permanency for a period of seventeen months, or for any other period less than life.

Concerning the subject of permanent disability, the petition alleged that by accident plaintiff was permanently and totally disabled, and under the terms of the policy was entitled to a monthly income from the company; that, after plaintiff had ascertained he was permanently totally disabled, he made due proof of his total permanent disability; and that, notwithstanding plaintiff was and is permanently totally disabled, the company failed to pay plaintiff as a monthly income 1 percent. of the face of the policy. The petition then alleged that, under the provisions of the policy in regard to permanent disability, there was due plaintiff sums with interest for a list of months covering the period August 5, 1927, to December 5, 1928. The petition then contained the following: "That by reason of the foregoing facts, there is due from the defendant to the plaintiff on account of the monthly indemnity due him under the terms of said policy, the sum of seventeen hundred seventy-six and 56/100 dollars ($1,776.56) with interest from the 10th day of December, 1928, at the rate of six percent. per annum. *** "

Defendant's answer with respect to permanency of disability was a general denial.

Plaintiff's proof was, not that he was totally disabled for seventeen months, but that he was totally disabled permanently.

Defendant requested the court to give certain instructions to the jury which disclosed defendant's construction of the policy and conception of the issue concerning permanency of disability. Three of the requested instructions follow:

"2. You are instructed that the contract of insurance sued on does not provide for the payment of an indemnity for loss of time or wages due to bodily injuries or disease, nor for temporary total disability, nor for partial disability, whether temporary or permanent, but only provides for the payment of a monthly income in case the insured, due to bodily injuries or disease, shall become both totally and permanently disabled, and will be both totally and permanently disabled for the remainder of his life.

"3. You are instructed that the burden of proof in this case is upon the plaintiff, and it is incumbent upon him to show by the greater weight of the evidence that he is both totally and permanently disabled in accordance with the definition of total and permanent disability contained in the policy or contract of insurance sued on, and if plaintiff fails to show by the greater weight of evidence that he is both totally and permanently disabled as defined in the policy of insurance sued on, and will be both totally and permanently disabled during the remainder of his life, your verdict should be for the defendant.

"4. You are instructed *** that the policy only provides for the payment of the monthly income in case the plaintiff, due to bodily injuries or disease, becomes both totally and permanently disabled so that by reason of such injuries or disease he is prevented from performing any work or conducting any business for compensation or profit, and will be so prevented from performing any work or conducting any business for compensation or profit so long as he may live, and unless you should so find, your verdict should be for the defendant."

In defendant's original brief, it was contended these instructions were correct and should have been given. The district court in fact adopted defendant's interpretation of the term "permanent," and instructed the jury accordingly. Instructions 1 and 5 read as follows:

"1. The burden of proof in this case is upon the plaintiff to establish to your satisfaction by a preponderance of the evidence: ***

"That he received injuries permanently and totally disabling him and such as to prevent him then and at all times thereafter from performing any work or conducting any business for compensation or profit.

"If plaintiff shall establish the above to your satisfaction by a preponderance of the evidence, then and in such event you should find for the plaintiff.

"On the contrary, if plaintiff shall fail to establish to your satisfaction by a preponderance of the evidence all of the above and foregoing, then, and in such event, you should find for defendant and against plaintiff.

"5. Total disability is any impairment either of body or mind, rendering it impossible for the disabled person to follow gainful occupation.

"Such total disability is permanent whenever it is founded upon conditions which render it certain, established to your satisfaction by a preponderance of the evidence, that it will continue throughout the life of the person suffering from such injuries."

In defendant's original brief instruction No. 1 was approved, and the part of instruction No. 5 defining permanency was approved.

Instruction No. 6 given by the court reads as follows:

"The policy provides that the plaintiff, in order to be entitled to recover, must have received injuries of such a nature as totally and permanently to disable him so as to prevent him then and at all times thereafter from performing any work or conducting any business for compensation or profit.

"You are instructed that the plaintiff is entitled to recover under this provision of the policy if you find that by reason of the injuries sustained by him he has been and is totally and permanently disabled from performing any work or conducting any business for compensation or profit."

In defendant's original brief this instruction was criticized as follows:

"In instruction No. 6, the court in the first paragraph again clearly defines total and permanent disability in the policy, and then when he instructs the jury as to what they should do, confines it to the present; that is, he told the jury in substance that if the appellee 'is totally and permanently disabled from performing any work or conducting any business for compensation or profit,' that is now, then he could recover."

Instruction No. 9 given by the court reads as follows:

"Under the testimony in this case, a question for you to determine is whether the plaintiff was and is totally and permanently disabled. There is no contention that the plaintiff was not injured at the time, nor is there any contention but that such injuries did, at the time of the injury complained of,...