McAndrews v. Prudential Ins. Co. of America
| Citation | 271 N.W. 857,132 Neb. 332 |
| Decision Date | 12 March 1937 |
| Docket Number | 29795. |
| Parties | MCANDREWS v. PRUDENTIAL INS. CO. OF AMERICA. |
| Court | Supreme Court of Nebraska |
Syllabus by the Court.
1. " Due proof" of disability while the policy is in full force and effect is a condition precedent to waiver of payment of premiums under the following policy provision " If the insured * * * shall furnish due proof to the company, while this policy is in full force and effect and while there is no default in the payment of premium, that he at any time, * * * from any cause whatsoever shall have become permanently disabled * * * the company upon receipt of such proof will waive the payment of each premium that may become payable thereafter under this policy during such disability."
2. Due proof of disability required in insurance policy, in the absence of specifications as to the manner in which proof shall be made, does not require any particular form of proof but only such a statement of facts which, if established in court, would require payment of the claim.
3. Evidence of plaintiff, set out in the opinion, held insufficient to establish " due proof" of permanent disability, within the meaning of the policy.
Appeal from District Court, Douglas County; Leslie, Judge.
Action by Patrick J. McAndrews against the Prudential Insurance Company of America. Judgment for plaintiff, defendant appealed, and, after the lodging of the appeal and the death of plaintiff, the action was revived in the name of Dorothy McAndrews Iverson, special administratrix.
Judgment reversed.
Evidence that insured while seeking loan on life policy stated to agent that he had been unable to work for some time because of his pleurisy held insufficient to establish " due proof" of permanent disability necessary to relieve insured from liability for premium payments under policy or to justify recovery of disability benefits where policy lapsed before making of any other proof.
Hall, Young & Williams, of Omaha, for appellant.
Brome & Thomas and Jas. J. Fitzgerald, all of Omaha, for appellee.
Heard before ROSE, GOOD, EBERLY, PAINE, and CARTER, JJ., and KROGER, District Judge.
This is an action to recover for disability benefits under the provisions of a life insurance policy issued by defendant. Plaintiff had judgment, and defendant has appealed.
Plaintiff in his petition alleged the issuance of the policy, which contains the following provision: " If the insured, after the first premium on this policy has been paid, shall furnish due proof to the company, while this policy is in full force and effect and while there is no default in the payment of premium, that he, at any time after payment of such first premium, while less than sixty years of age, from any cause whatsoever shall have become permanently disabled or physically or mentally incapacitated to such an extent that he by reason of such disability or incapacity is rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, the company upon receipt of such proof will waive the payment of each premium that may become payable thereafter under this policy during such disability."
Plaintiff further alleged that on the 25th of May, 1933, he was permanently disabled and physically incapacitated, and that he gave verbal notice to the managing agent of defendant corporation that he was permanently disabled and unable to perform any kind of work for compensation; that on or about June 15, 1933, he once more orally advised said agent that he was permanently and totally disabled, and that at the time said notice was given said policy was in full force and effect. Plaintiff prayed for recovery of the benefits as provided by the terms of the policy.
Defendant admitted issuance of the policy and that it contained the provisions alleged by plaintiff, and, by way of defense, alleged that the annual premium on said policy, due May 25, 1933, was not paid and that said policy lapsed on August 3, 1933, for nonpayment of that premium; and, further, denied that insured had furnished due proof to it that he had become permanently disabled or physically or mentally incapacitated while said policy was in full force and effect and while there was no default in the payment of premium. Defendant then admitted that insured was permanently disabled as early as May 25, 1933. In a reply plaintiff alleged defendant had waived due proof by denying liability under the provisions of the policy in municipal court where the action was begun.
After all the evidence was adduced, each party moved for a directed verdict. Thereupon, the jury were discharged and the cause was submitted to the court, which made the following findings of fact:
" The court further finds that the defendant's answer in municipal court, wherein defendant ‘ denies that plaintiff was totally and permanently disabled within the terms of said policy on June 25, 1933,' was not a waiver of its defense that due proof of disability had not been furnished to it while said policy was in full force and effect and while there was no default in the payment of premium.
The court further finds that whether or not the alleged oral statements of plaintiff to defendant's agent Murphy in May or June, 1933, were sufficient to constitute due proof of disability within the terms of said policy, is a question of law for the court.
The court further finds that said statements of plaintiff to defendant's agent Murphy, if made, constituted due proof of his disability. * * *
The court further finds that plaintiff did make such statements to defendant's agent Murphy, and that plaintiff thereby furnished due proof of disability within the terms of said provision while said policy was in full force and effect and there was no default in the payment of premiums."
After the appeal was lodged in this court, plaintiff departed this life, and the action was revived in the name of his personal representative.
Plaintiff filed no motion for a new trial and no cross-appeal. The finding of the trial court against him on the question that defendant waived the making of due proof by denial of liability in a municipal court has become conclusively settled in favor of defendant.
As a condition precedent to insured's right to recover, it was incumbent upon him to establish by evidence that he had furnished due proof of permanent disability, as provided in the policy, while the policy was in full force and effect and while there was no default in the payment of premium. This proposition is supported by the following, among other authorities: Cochens v. Prudential Ins. Co. of America, 4 Cal.App.(2d) 172, 40 P.2d 902; Orr v. Mutual Life Ins. Co. of New York (D.C.) 57 F.(2d) 901; Franklin Life Ins. Co. v. Fisher, 164...
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