Millis v. Continental Life Ins. Co.

• Decision Date: 12 May 1931
• Docket Number: 22723.
• Citation: 162 Wash. 555,298 P. 739
• Parties: MILLIS v. CONTINENTAL LIFE INS. CO.
• Court: Washington Supreme Court

298 P. 739

162 Wash. 555

MILLIS v. CONTINENTAL LIFE INS. CO.

No. 22723.

Supreme Court of Washington

May 12, 1931

Department 2.

Appeal from Superior Court, Whatcom County; Geo. A. Joiner, Judge.

Action by L. Kent Millis against the Continental Life Insurance Company. Judgment for the plaintiff, and the defendant appeals.

Affirmed.

Will J Griswold and Curtis E. Abrams, both of Bellingham, for appellant.

F. M Hamilton, of Bellingham, for respondent.

MILLARD J.

A life insurance policy issued by the defendant upon the life of the plaintiff obligated the insurer to pay to the insured for total and permanent disability, 'which must occur and originate while this policy is in full force. after one year's premium has been paid,' a monthly income of $100 and to waive payment of premiums during the continuance of the disability. This action was brought to enforce payment of benefits under that provision of the contract. The trial of the cause to a jury resulted in a verdict in favor of the plaintiff. From judgment entered on the verdict, motions for judgment notwithstanding the verdict and a new trial having been overruled, the defendant appealed.

On February 27, 1924, the appellant issued to the respondent a life insurance policy. That policy provided, in addition to indemnity in case of death, for the payment of $100 monthly in the event of total and permanent disability of the insured. The pertinent provisions of the insurance contract read as follows:

'This policy and the application therefor, copy of which is attached hereto, consitute the entire contract. All statements made by the insured shall, in the absence of fraud, be deemed representations and not warranties, and no such statement shall avoid the policy unless it is contained in the written application therefor.'

'* * * This policy * * * shall be incontestable after one year from date of issue if the premiums are duly paid, except as provided under the provisions or conditions relating to benefits in the event of total and permanent disability. * * *'

'* * * Total and permanent disability may be due either to bodily injuries or to discase, which must occur and originate while this policy is in full force, after one full year's premium has been paid, and must be such as to prevent the insured then and at all times thereafter from engaging in any occupation whatsoever, for remuneration or profit. Total disability, as defined above, which exists and has existed continuously for not less than three months shall be presumed to be permanent.'

Respondent was examined for the insurance at Ashland, Ky. by appellant's medical examiner, Dr. William De Bord, who had known respondent for more than twelve years prior to the date of the examination. No testimony of this physician is found in the record before us. The respondent was at the time of his examination, and had been for a long time prior thereto, a regularly employed agent of appellant, and engaged in writing all forms of life insurance sold by the appellant. Prior to his employment by the appellant as a life insurance solicitor, the respondent had been engaged in the business of writing life insurance from 1912. From January 1, 1920, until the date of the policy involved in the case at bar, the respondent devoted his entire time to the business of selling life insurance. His ability as a life insurance salesman is reflected by the fact that for a number of years prior to the date he was insured by the appellant the respondent's income from insurance commissions approximated $6,000 annually.

At the time he made application for the insurance, the respondent submitted to the appellant's medical examiner X-ray photographs taken of his lungs in 1920. In his application, the respondent stated that he was then free from all disease, and that he had never been afflicted with any disease. He further answered questions in the application as follows:

'To what extent if any do you use alcoholic drinks? (Give daily or other average.) No. Have you ever taken treatment for any drug or liquor habit? No. Are you now in good health? If not, state cause of ill health. Yes. Has applicant a hernia? No. Kind? None. Is it reducable? None. Is a suitable truss worn? None. The amount of insurance now in force on my life is None.'

Respondent continued in the employment of the appellant until about January 1, 1925, when he became ill. That illness, which appears to have been as much mental as physical, progressed to such an extent that on or about February 8, 1925, the respondent was committed to the Eastern State Hospital for the Insane at Lexington, Ky. which is about one hundred and forty miles from Ashland and Catlettsburg, Ky. respondent's home and place of business. He was committed to that institution as a patient suffering from dementia of such a serious nature as to require both restrainst and special medical treatment. He remained in the hospital ninetythree days, and was paroled May 12, 1925, returning to his father's home. He remained at his father's home until October 8, 1925, and during July and August of that year entered into a contract with the Union Central Life Insurance Company and its general agent, under whom he had previously solicited insurance for that company. He wrote five or six policies of insuranc for that company and a few policies for other companies. About October 8, 1925, he was returned to the Eastern State Hospital at Lexington, where he remained until December 13, 1925. He again returned to his father's home, where he remained until April 6, 1926, on which date he was again returned to the Hospital for the Insane, remaining there for sixteen days. He was released from that institution April 22, 1926, and departed for Bellingham, Wash., which has been his residence ever since. His wife and two children removed from Ashland, Ky. to Bellingham, Wash., about April, 1925, where they have since resided.

At the time of his commitment to the hospital for the insane, his father was appointed as respondent's guardian. On March 18, 1925, that guardian applied in respondent's behalf to the appellant for total and permanent disability benefits under the terms of the insurance contract. The recitals in that application, so far as material, are as follows:

'Give date on which you first consulted a physician or surgeon for the illness, disease or injury which led up to your present disability, together with the names and addresses of all physicians or surgeons consulted since that time.'

'Date. Do not know. Names and addresses. First I know Feb. 6, 1925. C. F. Bond, Catlettsburg, Ky. and on Feb. 8, 1925, Dr. A. C. Bond, Catlettsburg.'

'Describe fully your disability, stating all particulars and giving all causes leading up to same.

'Particulars. Drs. pronounced tuberculosis and he was addicted to use of drugs. Causes. Habit had been formed from using to allay suffering.'

'Have you had any illness, disease or infirmity, or injury other than as mentioned above?

'Not that I know of.'

'Are you wholly, continuously and permanently disabled? and (b) Will you be unable for the remainder of your life to perform any work or conduct any business for gain, compensation or profit?

'That seems to be the case. He is in a State Institution and appears to be hopeless case.'

'(a) When did you quit work entirely? (b) For what proportion of each day are you confined to your bed and to your house? (c) Give name and address of the physician who is now attending you (if more than one is employed, give all names with addresses).

'(a) Has not worked since Nov. 1924. (b) All the time. Is in hospital at Eastern State Hospital, at Lexington, Ky. (c) Dr. Thompson and Dr. Davenport at the Institution.'

The report of Dr. Chas. F. Bond, the attending physician who personally knew the insured and had been his family physician for five years, is attached to the application and reads as follows:

'(a) Date you were first consulted. (b) Condition of patient at that time. (c) When did the first symptoms appear? (d) Is patient still under your care? If not, give date of last prescription or visit.

'(a) 1920. (b) General debility--'rundown.' (c) 1920. (d) No. Feb. 9, 1925.

'Is the disease acute? Chronic? Venereal? (b) To what do you attribute the origin of the disease? (c) Diagnosis and symptoms of disease, or description of injury causing the disability. (d) Present status.

'(a) Chronic. (b)? (c) Probably T. B. (d) Progressive.

'(b) Have any chemical, microscopical or serological tests been made?

'(b) Not by me.

'(a) In your opinion will the Insured either wholly or partially recover the use of his body? (or mind if illness is mental) (b) Are there any unusual features in the case which would prolong recovery? If so, what are they?

'(a) ? (b) No.

'Do you believe the insured has become wholly, continuously and permanently disabled and will for life be unable to perform any work or conduct any business for compensation or profit?

' ?

'Do you know of any reason why the claim for Total and Permanent Disability is not a fair one?

'No.'

The foregoing application and physician's report were received by the appellant at its home office April 15, 1925. The benefits were not allowed by appellant. The record does not disclose whether appellant made any investigation of respondent's guardian's claim. Other than the filing of the claim, neither respondent or his guardian made any further attempts to obtain the disability benefits. Respondent paid at the time the policy was issued one-half of the first annual premium, and on or about August 9, 1924, paid the remaining one-half. That respondent paid the full premiums in 1924, 1925, and 1926 is not disputed.

On February 9, 1925, the respondent,...