Mutual Life Ins. Co. of New York v. Tormohlen
| Decision Date | 10 March 1941 |
| Docket Number | No. 7437.,7437. |
| Parties | MUTUAL LIFE INS. CO. OF NEW YORK v. TORMOHLEN et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James M. Barrett, Jr., and Leigh L. Hunt, both of Fort Wayne, Ind., for appellant.
James P. Murphy, of Fort Wayne, Ind., Roscoe D. Wheat, of Portland, Ind., and Guy Colerick and Frank E. Corbett, both of Fort Wayne, Ind., for appellee.
Before SPARKS and KERNER, Circuit Judges and LINDLEY, District Judge.
Plaintiff insurance company brought an action against the defendants pursuant to the Federal Declaratory Judgment Act, 28 U.S.C.A. § 400, seeking a decree that it was no longer obligated to make disability payments to defendants under five policies of life insurance upon the life of Herbert V. Tormohlen.
In its complaint plaintiff alleged that since April 1, 1937, it was under no obligation to resume the payment of monthly disability benefits. The defendants answered that plaintiff was under an obligation to continue the payment of disability benefits, since the insured was totally and permanently disabled within the meaning of the provisions of the policies. The case was tried without a jury, the District Court found for the defendants and rendered judgment that Tormohlen was on April 1, 1937, and continually since, totally and permanently disabled within the meaning of the policies. To reverse the judgment plaintiff appeals.
Three of the policies involved were issued on June 13, 1926 and provided for monthly disability benefits in the event Tormohlen became totally disabled. The policies defined total disability thus: "Disability shall be considered total when there is any impairment of mind or body which continuously renders it impossible for the insured to follow a gainful occupation." Another policy was issued on November 10, 1923, and the fifth policy was issued on December 1, 1923. These also provided for disability benefits in the event Tormohlen became totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation.
The trial was commenced on May 9, 1939, and continued for 8 days. The record is voluminous, consisting of the testimony of 102 witnesses and a large number of exhibits and is in hopeless and irreconcilable conflict. Witnesses of equal respectability, so far as we know, testified in direct opposition. We have read and considered all the evidence which, divesting it of immaterial details and resolving conflicts therein in defendants' favor, discloses that at one time Tormohlen had been engaged in the practice of law, but later operated a chicken farm and hatchery at Portland, Indiana; that prior to 1932 Tormohlen was a healthy person, calm, coherent and fluent in his speech and active in the management of the Everlay Hatchery & Poultry Farm, employing 15 persons; that on October 14, 1932, he was injured in an automobile collision, necessitating hospitalization, and later, on November 7, 1932, suffered another injury, receiving a deep scalp wound at the margin of the nose and upward across the left side of his head, ending near the base of the skull. He also suffered contusion of the upper right chest and left hip, refracture of the right fibula and a brain concussion. This second accident confined him to the hospital for some time. After his discharge from the hospital he ceased the active management of the poultry business.
In due time he made proof of total and permanent disability and plaintiff paid the benefits provided in the five policies, continuing the payment of the benefits to April 12, 1937, on which date plaintiff claimed that the total and permanent disability had ceased.
After the accidents of 1932 Tormohlen became nervous, high strung, irritable, forgetful and at times cried. His speech was incoherent and unintelligent and he took no part in the management of the hatchery.
Medical evidence in defendant's behalf consisted of the testimony of four physicians and was as follows:
Dr. Keeling testified that on March 7, 1934, Tormohlen was extremely nervous, incoherent and had hand tremors, May 22, 1934 he was very nervous, unstable mentally, that condition continuing throughout 1936. During 1937 the hand tremors were worse and Tormohlen had difficulty controlling himself. On April 16, 1939, Tormohlen was extremely hoarse, had tremors of the hands and his conversation was disconnected. He testified that in his opinion Tormohlen's symptoms were real and not simulated; that in the past 7 years he had had occasion to see Tormohlen perhaps 150 to 200 times and that he was of the opinion Tormohlen was not capable of managing the hatchery.
On cross-examination Dr. Keeling testified that if it was true that Tormohlen had participated in the activities charged to him, then he was of the opinion that Tormohlen must have had some control of his mental faculties at the particular times and was able to engage in business at least part of the time.
Dr. Block examined Tormohlen on May 9, 1939, and testified that Tormohlen cried, was irritable and forgetful; that he had tremors in his hands and legs; that it was possible to simulate hand tremors but that Tormohlen was not simulating and was not able to practice law or do administrative or executive work of any kind.
On cross-examination he testified that his opinion might be swerved if Tormohlen, in the fall of 1938, transacted business with Sears, Roebuck & Company and talked rationally, coherently and intelligently.
Dr. Savage examined Tormohlen on April 27, 1939, and testified that...
To continue reading
Request your trial
-
Continental Cas. Co. v. Novy, 3-779A185
...and rules of interpretation. In arguing that Novy was not occupationally disabled, Continental cites Mutual Life Insurance Co. of New York v. Tormohlen (7th Cir. 1941), 118 F.2d 163, wherein the court stated: "We think it is now well settled under the laws of Indiana that total disability, ......
-
Pacific Portland Cement Co. v. Food Mach. & Chem. Corp.
...also, California Code of Civil Procedure, § 1981; New York Life Ins. Co. v. Stoner, 8 Cir., 1940, 109 F.2d 874; Mutual Life Ins. Co. v. Tormohlen, 7 Cir., 1941, 118 F. 2d 163; Kortz v. Guardian Life Ins. Co., 10 Cir., 1944, 144 F.2d 676; International Hotel Co. v. Libbey, 7 Cir., 1946, 158 ......
-
Turner v. Manufacturers Cas. Ins. Co.
...1940, 10 Cir., 110 F.2d 995; Mutual Life Ins. Co. of New York v. Drummond, 1940, 8 Cir., 111 F.2d 282; Mutual Life Ins. Co. of New York v. Tormohlen, 1941, 7 Cir., 118 F.2d 163; Mutual Life Ins. Co. v. Krejci, 1941, 7 Cir., 123 F.2d 594; Columbian National Life Ins. Co. v. Goldberg, 1943, 6......
-
Wimsatt v. State
...v. State, 1955, 234 Ind. 57, 122 N.E.2d 860, certiorari denied 350 U.S. 889, 76 S.Ct. 145, 100 L.Ed. 783; Mutual Life Ins. Co. of New York v. Tormohlen, 7 Cir., 1941, 118 F.2d 163; Western & Southern Life Ins. Co. v. Danciu, 1940, 217 Ind. 263, 26 N.E.2d 912, 27 N.E.2d 763; Louisville, New ......