Mid-Continent Life Ins. Co. v. Walker

• Decision Date: 23 March 1926
• Docket Number: Case Number: 16168
• Citation: 128 Okla. 75,1926 OK 283,260 P. 1109
• Parties: MID-CONTINENT LIFE INS. CO. v. WALKER.
• Court: Oklahoma Supreme Court

1926 OK 283

260 P. 1109

128 Okla. 75

MID-CONTINENT LIFE INS. CO. v. WALKER.

Case Number: 16168

Supreme Court of Oklahoma

Decided: March 23, 1926

Syllabus

¶0 1. Appeal and Error--Reversal -- Verdict Unsupported by Evidence. Where the conclusion of the jury is not sustained by any reasonable hypothesis that can be based upon the proved and uncontroverted facts of the record, the verdict of the jury cannot be sustained, and the Supreme Court will reverse any judgment based thereon and will remand the cause for a new trial.

2. Insurance -- Action for Disability Benefits--Erroneous Instruction on Date Payments to Begin. Where a policy of insurance provides the insurer will begin to pay benefits to the insured six months after proof of disability, and the court instructs the jury that if they find for the plaintiff, they shall assess his recovery of monthly benefits from the date of his disability, such instruction is erroneous.

3. Same--Erroneous Instruction on Duration of Payments. Where a contract of insurance providing for payment of monthly benefits for total permanent disability during the life of the insured further provides: "The company (insurer) may at any time and from time to time, but not oftener than once a year, demand due proof of such continued disability, and upon failure to furnish such proof or if it appears that the insured is no longer wholly disabled, * * * no further premiums shall be waived nor further income payments made to the insured," held, a verdict finding for the plaintiff and awarding him monthly benefits "until the defendant shall show that the plaintiff is no longer wholly disabled by bodily injuries or disease from engaging in any occupation or employment for remuneration or profit" is erroneous and will be reversed on appeal.

4. Same--Recovery Limited to Benefits Accrued Previous to Filing Petition -- Actions for Subsequently Accruing Benefits. Where a policy of insurance provides for the payment of monthly benefits only, and this only in the event of total disability, no recovery can be had for benefits accruing after the filing of the action, in the absence of an amendment to the petition to cover the period between the filing of the original petition and the time of the trial, the recovery being limited to the sum of the benefits accruing up to that time only, but this does not preclude the insured from filing action for successively accruing benefits.

Rittenhouse & Rittenhouse, for plaintiff in error.

Pearson & Pearson, for defendant in error.

RUTH, C.

¶1 The parties hereto will be designated as they appeared in the trial court. Plaintiff alleges that on June 12, 1923, defendant sold him an insurance policy insuring him in the sum of $ 2,500; that he paid the first premium, and the first amount due on the second premium in the sum of $ 20.68; that on July 10, 1923, he was thrown from a horse and his right hip injured, and the vertebrae in his back were jammed together, and that as a farmer he has been totally disabled; that his disabilities are permanent, and prays judgment against the defendant for the payment of $ 25 per month from July 10, 1923, and as long as he lives, and for $ 20.68, the amount of the premium advanced which should have been waived by defendant.

¶2 The policy was in the sum of $ 2,500, and provided in section "A" as follows:

"Section A. Permanent Total Disability--After one full annual premium shall have been paid upon this policy, and before a default in the payment of any subsequent premium, if the insured shall furnish the company with due proof that he has since such payment and before having attained the age of 60 years become wholly disabled by bodily injuries or disease, not occasioned by military or naval service or participation in aeronautic or submarine expeditions or operation and will be presumably thereby permanently, continuously and wholly prevented from engaging in any occupation or employment whatsoever for remuneration or profit, and that such disability has then existed for not less than 60 days, then:

"1. Waiver of Premium. Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company will on such anniversary waive payment of the premium for the ensuing year.

"2. Life Income to Insured. Six months after receipt of such proof, the company will begin to pay to the insured a monthly income of one per cent. of the face amount of this policy, which income will continue during the lifetime and continued disability of the insured.

"3. Recovery from Disability. The company may at any time and from time to time, but not oftener than once a year, demand due proof of such continued disability, and upon failure to furnish such proof, or if it appears that the insured is no longer wholly disabled as aforesaid, no further premiums shall be waived nor further income payments made to the insured."

¶3 After issue joined the cause was tried to a jury, under instructions from the court, properly excepted to by defendant, and after the refusal of the court to give certain instructions requested by defendant, the jury returned the following verdict:

"We, the jury, impaneled and sworn in the above entitled cause, do, upon our oaths, find for the plaintiff, and fix the amount of recovery at $ 398.34, the same being $ 25 per month from the date he was wholly disabled until the present time, and in addition thereto the sum of $ 20.68, the amount of premium paid by the plaintiff as premium on the policy of insurance, and the further sum of $ 25 per month hereafter until the defendant shall show that the plaintiff is no longer wholly disabled by bodily injuries or disease from engaging in any occupation or employment for remuneration or profit."

¶4 Defendant moved for judgment notwithstanding the verdict, which was by the court overruled, and thereafter defendant filed its motion for a new trial, which was by the court overruled, and judgment was entered, which in part was as follows:

"Judgment is hereby entered in favor of the plaintiff under said verdict against the defendant in the sum of $ 419.02 and interest thereon at the rate of six per cent. from November 8, 1924, until paid, and for the further sum of $ 25 for each and every month hereafter, commencing November 8, 1924, until the defendant shall show that the plaintiff is no longer wholly disabled by bodily injuries or disease from engaging in any occupation or employment for remuneration or profit, and all monthly payments not paid when due shall bear interest at the rate of six per cent. from the date they become due until paid; to all of said rulings and acts of the court, defendant excepts and its exceptions are allowed."

¶5 From this judgment the defendant appeals, and brings this cause here for review upon petition in error and case-made, and presents its case upon several assignments of error, and, first, consideration will be given to the sufficiency of the evidence to support the verdict. This was a life insurance policy, and was not an accident policy. The only provision of the policy under which the insured might personally be entitled to benefits was the one providing for a $ 25 per month payment in the event he became totally and permanently disabled "by bodily injuries or disease" before attaining the age of 60 years. His right of recovery of one per cent. of his policy, or $ 25 per month, was contingent upon his total permanent disability. If this were an accident insurance policy, a different question would arise, but being primarily a life insurance policy, this special protection was afforded the insured, not if he sustained an injury incapacitating him for one month or one year; not if he sustained a broken bone, but if he should become permanently totally disabled and "wholly prevented from engaging in any occupation or employment whatsoever, for remuneration or profit," then and in that event the defendant agreed to suspend payment of premiums, and pay the insured $ 25 per month during his life and pay his beneficiaries $ 2,500 at his death.

¶6 Very able and exhaustive briefs have been submitted on the question of what constitutes total disability, and numerous cases are cited on this point. However, they were all decided under accident insurance policies, and we agree with them, in the main, and the rule most favorable to this plaintiff is found in the text in May on Insurance (4th Ed.) 552, as follows:

"Total disability from the prosecution of one's usual employment means inability to follow his usual occupation, business, or pursuits in the usual way. Though he may do certain parts of his accustomed work, and engage in some of his

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