McKown v. State Mutual Life Assurance Company of Worcester

• Decision Date: 19 April 1937
• Docket Number: April T.,35,1937
• Parties: McKown v. State Mutual Life Assurance Company of Worcester, Appellant
• Court: Pennsylvania Superior Court

191 A. 621

127 Pa.Super. 117

McKown v. State Mutual Life Assurance Company of Worcester, Appellant

No. 35, April T., 1937

Superior Court of Pennsylvania

April 19, 1937

Argued October 29, 1936

Appeal from judgment of County Court, Allegheny Co., 1935, No. 985 in case of Chester E. McKown v. State Mutual Life Assurance Company of Worcester.

Assumpsit on life insurance policies for disability benefits. Before Piekarski, J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned, among others, were refusal of motions for judgment n. o. v. and for new trial.

Judgment affirmed.

T. W Pomeroy, Jr., with him Reed, Smith, Shaw & McClay, for appellant.

L. A. Nunnink, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ. Opinion by Cunningham, J.

OPINION

Cunningham, J.

The action below was assumpsit to recover certain disability benefits alleged to be due under a life insurance policy issued to the plaintiff by the defendant company, and for the return of certain premiums paid under protest by plaintiff to defendant, the payment of which plaintiff alleged defendant had waived. A verdict was returned in favor of the plaintiff in the sum of $ 2,340.65; defendant's motions for judgment n. o. v. or a new trial were denied; and it has appealed from the judgment entered upon the verdict.

The following facts were not controverted: On June 30, 1922, the defendant issued to the plaintiff, after a medical examination by the defendant's examiner, a policy of life insurance in the amount of $ 5000., for an annual premium of $ 115.55, payable during plaintiff's life. He was then twenty-eight. This policy contains a total and permanent disability provision, the material part of which reads:

"If the insured hereunder, after the payment of one full year's premium on this policy, or any regular installment thereof, and while no premium hereunder is in default, shall furnish due proof that, before reaching the age of sixty years, because of accident or disease he has become wholly, continuously and permanently unable to pursue any gainful occupation and presumably for life will be unable to perform any work, mental or manual, or engage in any business for compensation or profit, and that such disability, or the cause thereof, was sustained or contracted after the date hereof, the company will, with the written assent of all the parties in interest, waive the payment of all premiums becoming due under this policy after the expiration of the then current policy year, and pay the insured one per cent of the face amount 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 prior to the maturity of this policy."

Three years later -- during June of 1925 -- the plaintiff became totally and permanently disabled from a disease known as spinal cerebellar ataxia, a rare disease caused by a degeneration of the nerve elements in a certain part of the spinal cord and the cerebellum of the brain. In other words, there was something wrong with the motor apparatus that controlled certain muscles. As a result the plaintiff was obliged to resign his position in the office of the West Leechburg Steel Company where he was employed. In November of 1925 the plaintiff filed with the defendant company a claim for total and permanent disability benefits under the above quoted clause. The claim was allowed by the defendant, and the stipulated disability benefits were paid to the plaintiff from November 27, 1925, to July 25, 1932, and the premiums on the policy were waived from the same date to September 30, 1932. On July 27, 1932, the defendant notified the plaintiff that no further payments would be made and demanded that payment of premiums be resumed. Plaintiff paid the premiums thereafter, under protest, until the date of filing this suit -- in the amount of $ 390.65. The action was brought to compel payment of disability benefits from July 26, 1932, to date of suit, aggregating $ 1,950., and to recover back the premiums paid under protest. There is no dispute that the total amount involved is $ 2,340.65.

The controverted question in the case was whether the plaintiff contracted his disabling disease before or after the date of the policy. This was material under the clause which reads: "and that such disability, or the cause thereof, was sustained or contracted after the date hereof." The first question involved under the assignments is whether defendant's point for binding instructions should have been affirmed. If so, its subsequent motion for judgment n. o. v. should now be granted. The disposition of this question requires a review of the evidence.

At the time of the trial plaintiff was past forty-one years of age. He testified he had always been well up until the first part of June, 1925, and described the disability which he said occurred at that time in these words: "I went to pieces, that is all, I couldn't write, I couldn't talk, I couldn't move." His testimony showed he had enlisted in the army in 1917 and that he was discharged from the service on December 5th of that year for a reason he did not know at that time but learned later. After his discharge he went to work for the Pennsylvania Railroad Company in a clerical capacity for a short time and in March or April of 1918 was employed by the West Leechburg Steel Company in its order department. During a strike in that company's plant in 1919 he did hard physical work in the mill and on the coal tipple. After the strike he returned to his former position in the order department where he remained until he was totally disabled in June of 1925. He also testified that during his lifetime he had participated in strenuous athletics such as skating, swimming and football.

It was developed on cross-examination that plaintiff had sustained an injury of the head through being hit by the butt of a gun while in the army and was soon thereafter discharged because the surgeon said he had locomotor ataxia. He did not learn the reason for his discharge until 1927 or 1928. In 1920 or 1921 he filed a claim with the Veterans' Bureau for compensation. He said this was done merely as a precaution in the event that his head injury should prove to be serious. At that time his disability was found to be less than ten per cent and he received no compensation. In the winter of 1922 or early in 1923, subsequent to the issuing of the policy, he began to receive a disability award from the government of $ 8.00 or $ 10.00 a month which was increased in 1925 to $ 80.00 a month and then to $ 100.00.

The defendant offered in evidence the plaintiff's application for disability benefits, dated November 13, 1925, in which he stated: "I went to work, came on gradual over last couple of years until unable to work since May 1, 1925."

Plaintiff had two lay witnesses, one the Secretary and Treasurer of the West Leechburg Steel Company, the other a lifelong friend, who testified that plaintiff showed no signs of illness until two or three months before he was stricken.

Doctor Berg, a general and traumatic surgeon, who examined the plaintiff on September 25, 1935, testified he had the degenerative disease, above mentioned, known as cerebellar ataxia; that it had not resulted from any injury; and that...