Marti v. Midwest Life Ins. Company

• Citation: 189 N.W. 388,108 Neb. 845
• Decision Date: 28 June 1922
• Docket Number: 21988
• Parties: EVA J. MARTI, APPELLEE, v. MIDWEST LIFE INSURANCE COMPANY, APPELLANT
• Court: Supreme Court of Nebraska

189 N.W. 388

108 Neb. 845

EVA J. MARTI, APPELLEE, v. MIDWEST LIFE INSURANCE COMPANY, APPELLANT

No. 21988

Supreme Court of Nebraska

June 28, 1922

APPEAL from the district court for Lancaster county: FREDERICK E SHEPHERD, JUDGE. Affirmed.

AFFIRMED.

Lincoln Frost and J. W. Kinsinger, for appellant.

T. S Allen, contra.

Heard before MORRISSEY, C. J., LETTON, ROSE, DEAN, ALDRICH, DAY and FLANSBURG, JJ.

OPINION

LETTON, J.

Defendant insurance company issued a policy of life insurance to Albert F. Marti for $ 1,000 for the benefit of his wife, Eva J. Marti. The premium was paid for one year, beginning February 10, 1916, and the policy was delivered. The insured died on December 25, 1917, without having paid the premium due in January, 1917, so that the policy lapsed on February 10, 1917. It is alleged that the insured became totally disabled and incurably insane on or about March 1, 1916, and remained in that condition until his death. His wife was not aware of the existence of the policy and found it among his papers some time after his death. She then gave notice and proofs of death to the company, which refused to pay, mainly upon two grounds, first, that the policy lapsed on February 10, 1917, and, second, that the right to exercise certain options provided in the policy was a personal right and could only be exercised by the insured, or by some one for him during his lifetime. Other defenses set forth in the answer were, that the disability arose from a disease originating prior to the delivery of the policy, lack of proofs for more than two years after the death, and the falsity of answers made by the insured to questions in the application. The jury found for plaintiff and judgment was rendered accordingly.

The policy contained the usual provisions for forfeiture upon nonpayment of the premium, and also contained the following provision: "Should the insured, no premium being in default, become totally and permanently disabled through bodily injury or disease originating after the delivery of this policy, so that there is no work, occupation or profession, either then or thereafter, that the insured can do or follow to earn or obtain any wages, compensation or profit, and proofs of such condition are furnished to the company at its home office to its entire satisfaction, the insured, after receiving notice from the company that it has approved the evidence submitted of such total and permanent disability, may select one of the following options: First. Retain this policy as a fully paid-up policy for its face amount, but without the extra indemnity in case of accidental death. (The other options are of no import in this case.) Without prejudice to any other cause of disability, * * * incurable insanity will be considered as total and permanent disability within the meaning of this provision."

Upon the back of the policy we find the following printed statement: "Should the insured become totally and permanently disabled, the policy becomes paid-up for its face amount at the option of the insured; that is, no more premiums are payable."

The trial court fairly submitted all defenses to the jury, other than the two principal ones mentioned, and, since the evidence was conflicting, the verdict settled these issues in favor of plaintiff.

In its brief the insurance company concedes: "That the insured became totally and permanently disabled within the meaning of the policy March 1, 1916, and remained so thereafter until his death December 25, 1917." The plaintiff bases her right to recover on the proposition that, since the insured became totally and permanently disabled upon March 1, 1916 and so remained until his death, he was incapable of giving the proofs or exercising an option, and that therefore she had the right, when she discovered the policy, to furnish the proofs required and exercise the option. The contention of the company is that the exercise of the optional provisions in such a case is personal to the insured, so that when his mental disability, or incurable insanity, rendered him incapable of making proof, or selecting an option, he, or his beneficiary, lost all benefit of the optional provisions; that provisions giving additional rights to the insured upon the happening of certain events, or the performance of certain acts by the insured, in case of disability, are ancillary to the main purposes of...