Massachusetts Mut. Life Ins. Co. v. Montague

• Decision Date: 11 July 1940
• Docket Number: 28174.
• Parties: MASSACHUSETTS MUT. LIFE INS. CO. v. MONTAGUE.
• Court: Georgia Court of Appeals

10 S.E.2d 279

63 Ga.App. 137

MASSACHUSETTS MUT. LIFE INS. CO. v. MONTAGUE.

No. 28174.

Court of Appeals of Georgia, Division No. 2.

July 11, 1940

Rehearing Denied July 30, 1940.

Syllabus by the Court.

Louis L. Montague brought suit against the Massachusetts Mutual Life Insurance Company to recover disability benefits under the terms of six certain insurance policies issued to him by the defendant, and certain premiums paid by him, and damages and attorney's fees. The petition as amended contained substantially the following allegations:

The first policy was issued December 2, 1921, for $1,000, that the other four policies were for $5,000 each and were issued on August 28, 1925, April 7, 1927, December 22, 1928, and December 28, 1929, respectively. Copies of the six policies sued on were attached to the petition and made parts thereof. The disability benefits in the $1,000 policy were as follows "If the insured after payment of premium for the first policy year, and before default in the payment of any subsequent year's premium and before attaining the age of sixty years, shall furnish due proofs to the company at its home office that he has become totally and permanently disabled, that he is and will be permanently continuously and wholly prevented thereby from performing any work, or engaging in any occupation for compensation or profit, and that such disability has existed continuously for not less than sixty days, the company will [1] waive the payment of all premiums becoming due under this policy after the expiration of the then current policy year, and [2] pay to the insured if then living and such disability shall continue, one per cent of the face of this policy exclusive of any paid-up additions, and the like amount each month thereafter during the continuance of the said total disability of the insured prior to the maturity of the policy." The provisions for disability benefits in the $4,000 policy are as follows: "If the insured before default in the payment of any premium under this policy and before the anniversary of the policy on which his age at nearest birthday is sixty years, shall furnish due proof to the company at its home office that he has become wholly and permanently disabled so that he is and will be permanently continuously and wholly prevented thereby from performing any work or engaging in any occupation for compensation or profit, the company will [1] waive the payment of all premiums becoming due under this policy after the expiration of the then current policy year and [2] pay

to the insured one per cent of the face of this policy exclusive of any paid-up additions, and a like amount each month thereafter during the continuance of said total disability of the insured." Similar provisions appearing in each of the four $5,000 policies are as follows: "If the insured, before default in the payment of any premium under this policy and before the anniversary of the policy on which his age at nearest birthday is sixty five years, shall furnish due proof to the company at its home office that he has become wholly and permanently disabled so that he is and will be permanently, continuously and wholly prevented thereby from performing any work or engaging in any occupation for compensation or profit the company will [1] waive the payment of all premiums becoming due under this policy after the expiration of the then current policy year; and [2] pay to the insured one per cent of the face of this policy, exclusive of any paid-up additions, and a like amount each month thereafter during the continuance of said total disability of the insured." In each of the six policies sued on it is provided that notwithstanding proof of disability of the insured may have been accepted by the company as satisfactory, if the insured shall at any time, on demand, fail to furnish proof to the company of the continuance of his disability, all disability benefits provided for therein thereafter shall cease. Each of the policies as to disability benefits is substantially the same.

On February 27, 1939, the plaintiff became wholly and permanently disabled within the terms of the policies, and such disability has continued up to the time of the filing of the petition. On July 29, 1939, the plaintiff furnished to the defendant at its home office, a "Statement of insured" in connection with his claim for disability benefits under the policy. A copy of such statement is attached to the petition as amended. On July 29. 1939, the plaintiff furnished to the defendant, at its home office, an "attending physician's statement" in connection with his claim for disability benefits under the policies. A copy of this statement was attached to the plaintiff's petition. In this statement the following question is propounded to the attending physician: "How soon, in your opinion, will claimant be able to resume an occupation? Approximate date." To this question the physician answered "indefinite."

The plaintiff seeks to recover from the defendant disability benefits amounting to $250 per month for a period of six months beginning with February 27, 1939, on which date the plaintiff alleges that he became totally and permanently disabled. He further alleges as follows: "Under the terms of said contract defendant agreed to waive the payment of all premiums becoming due under said policies after the expiration of the then current policy year." "The premium on said policy issued on June 19, 1924, was payable $46.16 semi-annually in advance on the 19th day of December and June of each year." "After said disability commenced the then current policy expired on June 19, 1939 but the semi-annual premiums which then became due were not waived by defendant company but were paid by plaintiff." "The premium on said policy issued on August 28, 1928 was payable $60.15 semi-annually in advance on the 28th day of August and February of each year." "After said disability commenced the then current policy year expired on August 28, 1939, but the semi-annual premiums which then became due were not waived by defendant company but were paid by plaintiff." "Premiums on said policy issued on April 7, 1927 was payable $64.90 semi-annually in advance on the 7th of April and October of each year." "After said disability commenced the then current policy year expired on April 7, 1939, but the semi-annual premiums which then became due were not waived by the defendant company but were paid by the plaintiff." "Plaintiff is entitled to the return of the premiums so paid and therefore defendant is indebted to the plaintiff by reason thereof in the sum of $141.21." The plaintiff complied with all the terms and conditions of the policies and demanded of the defendant the payment of the sums due under the policies which the defendant failed and refused to pay.

The plaintiff, on October 19, 1939, amended the petition and alleged in part that "plaintiff has demanded of defendant that it pay the loss claimed in this action, and defendant has refused to pay said loss in bad faith, and sixty days have elapsed since said demand was made, said demand being made on the 29th day of July 1939, and by reason of such refusal to pay in bad faith the plaintiff is entitled to recover against the defendant in addition to the amount of the loss incurred, 25% of the liability of said company for said loss and also all reasonable attorney's fees for the prosecution of this action." The plaintiff likewise by this amendment added a prayer for the recovery of such damages and attorney's fees.

It appears that the plaintiff at the time of disability was 42 years old.

To the petition as amended the defendant filed its general and special demurrers. The ground of general demurrer urged by it was that no proof had been furnished by the plaintiff that he had become wholly and permanently disabled within the meaning of the policies because his attending physician in answer to the question as to how soon in his opinion would the claimant be able to resume an occupation, stated "indefinite." By its special demurrers the defendant contended [1] plaintiff under the provisions of the policies sued on could not recover the disability benefits for a period prior to July 29, 1939, the date on which the plaintiff claims to have furnished the defendant at its home office with proof of total and permanent disability within the meaning of the policies. [2] The plaintiff could not recover for any insurance premiums paid to the defendant company prior to July 29, 1939, the date upon which the plaintiff alleged that he had furnished to the defendant proofs of total and permanent disability. By each of the foregoing grounds of special demurrer the defendant insurance company contended that under the provisions of the policies sued on the furnishing of proof of total and permanent disability was a condition precedent to the plaintiff's right to receive disability benefits, and that under the provisions of the policies no such benefits were payable nor was the payment of insurance premiums waived for the period prior to the date of the furnishing by the plaintiff to the defendant at its home office of due proof of total and permanent disability. [3] By special demurrer the defendant challenged the right of the plaintiff to recover damages and attorney's fees for the refusal of the defendant, in bad faith, to pay the claims sued on. The defendant contended in such demurrer that the provisions of the policies as a matter of law negatived any idea of bad faith on its part such as would entitle the plaintiff to recover such damages and attorney's fees. The defendant further urged in its special demurrer to the prayer for damages and attorney's fees, added by the amendment that sixty days had not elapsed prior to...