Mutual Life Ins. Co. of New York v. Ewing

• Decision Date: 03 November 1942
• Citation: 151 Fla. 661,10 So.2d 316
• Parties: MUTUAL LIFE INS. CO. OF NEW YORK v. EWING (three cases).
• Court: Florida Supreme Court

10 So.2d 316

151 Fla. 661

MUTUAL LIFE INS. CO. OF NEW YORK v. EWING (three cases).

Florida Supreme Court

November 3, 1942

Rehearing Denied Nov. 20, 1942.

Appeals from Circuit Court, Marion County; F. R. Hocker judge.

Charles Cook Howell and Charles Cook Howell, Jr., both of Jacksonville, and Louis W. Dawson, of New York City, for appellant.

L. W Duval and James M. Smith, Jr., both of Ocala, for appellee.

BUFORD, Justice.

We consider appeals in these cases as per caption. They all involve the same question and must result alike. Each arises out of a separate indemnity policy of insurance for total and permanent disability.

The dates of the execution of the policies and the effective dates of the disability benefits are immaterial here.

The cases were tried together on one record but verdicts and judgments were rendered separately as to each policy.

The record shows conclusively that insured became permanently and totally disabled within the purview of each of the policies from and after July 1931. That the insurer recognized the existence of such permanent and total disability and paid according to the terms of each policy until the month of October, 1940, when it discontinued the payment of benefits and demanded the resumption of the payments of premiums. Then insured, to keep the several terms of the policy in force and to prevent forfeiture of his rights under the policy, resumed the payment of premiums under protest.

We might well enter a Per Curiam affirmance of the judgments in these cases and close the record here, but it occurs to us that the contention of the appellant indicates a lack of a clear conception as to the applicable rule as to burden of proof as here involved.

If and when an insured makes his initial claim for indemnity under a policy such as these, the burden of proof is on the insured to show that he comes within the purview of the terms of the policy that he is totally and permanently disabled. If he has been entitled to the benefits of the policy and receives such and thereafter, while receiving such benefits, so recovers as to no longer be entitled to the benefits and thereafter, for any reason, shall again become entitled to the benefits, the burden is again on him to establish that second or subsequent disability, exists the same as it was to establish the first. The rule as to such cases is too well settled to require citation of authorities.

Where, however, it is established, as in this case, that a permanent and total disability existed within the purview of the policy and the insurer seeks relief from continuation of payment of indemnities theretofore paid under and within the purview of the policy the burden is on the insurer to establish by the preponderance of the evidence that the condition of the insured is such that he no longer comes within the purview of the policy in this regard. See New York Life Ins. Co. v. Lecks, 122 Fla. 127, 165 So. 50; DeVore v. Mutual Life Ins. Co. of New York, 103 Mont. 599, 64 P.2d 1071.

We are unable to say that it is clearly made to appear that the insurer met this burden and thereby sustained his Twelfth Plea, which was as follows:

'12. The policy of insurance upon which this suit is founded provides that 'If the insurer shall at any time so recover that the payment of Disability Benefits terminates and later shall furnish due proof that he has again become totally and permanently disabled, Disability Benefits shall be subject to the same conditions as if no prior disability had existed.'

'By October of 1940 the Insured so recovered that the payment of disability benefits terminated. Later he did not furnish due proof that he has again become totally and permanently disabled.'

We next consider whether or not the lower court erred in allowing judgment including the amount of payments to the Company as premiums which were required by the insurer when it discontinued the payments of disability benefits. The record shows that the insurer notified the insured as follows as to each policy:

'Notice is hereby given that in accordance with the terms of the policy the undermentioned premium will become due and payable as stated below to The Mutual Life Insurance Company of New York. Unless the premium so due shall be paid to this Company or to its duly appointed agent or person authorized by it to collect the same, on or before the date mentioned below or within the 31 days grace period thereafter, the policy and all payments thereon will become forfeited and void, except as to the right to a surrender value, paid-up policy, or continued term insurance when provided for by statute or in the policy.

'Said premium is payable at the office of The Mutual Life Insurance Company, of New York, The Lynch Building, Main and Forsyth Sts., Room 715, Jacksonville, Fla. J. P. McNeil, Manager.

'Channing B. Ewing,

'East Lake

'Fla.

'A

'(Over)

'Please Return This Notice When You Pay The Premium.'

And also wrote the insured as follows:

'We enclose herewith usual premium notice notwithstanding the fact that consideration is being given to your claim for waiver of payment of this premium.

'This premium should be paid within the days of grace, in order to protect the policy unless prior to the expiration of the grace period you receive official notice that premium has been waived. If the premium is paid and later waived by the Company, prompt refund will be made. In this connection we would suggest that you give prompt attention to any papers concerning your claim which may have been forwarded you for completion.'

It is contended that the...