Myers v. Metropolitan Life Insurance Company
| Decision Date | 16 July 1943 |
| Docket Number | 10-1943 |
| Citation | 152 Pa.Super. 507,33 A.2d 253 |
| Parties | Myers, Appellant, v. Metropolitan Life Insurance Company |
| Court | Pennsylvania Superior Court |
March 11, 1943, Argued
Appeal from judgment of C. P. Dauphin Co., March T., 1937, No. 268 in case of Clarence B. Myers v. Metropolitan Life Insurance Company.
Assumpsit.
Verdict for plaintiff. Judgment entered for defendant n.o.v., opinion by Sheely, P. J., specially presiding. Plaintiff appealed.
Judgment affirmed.
Maurice Metzger, of Metzger & Wickersham, for appellant.
J Dress Pannell, for appellee.
Before Keller, P. J., Baldrige, Stadtfeld, Rhodes, Hirt, Kenworthey and Reno, JJ.
This action of assumpsit was brought on April 22, 1937 by the plaintiff against the defendant insurance company to recover certain disability benefits alleged to be due him under two life insurance policies; and for the refund of premiums paid by him on those policies and on a third life policy.
The first two policies were issued on February 20, 1931 and February 24, 1931, for $ 10,000 and $ 5000, respectively, and each of them contained a supplementary contract, for which an additional annual premium of $ 3.82 per $ 1000 face amount of insurance was charged, which provided, in substance, that on receipt by the company of due proof that "the insured has, while said policy and this supplementary contract are in full force, .... become totally disabled, as the result of bodily injury or disease occurring after the issuance of said policy, ....," the company during the continuance of such disability would (1) waive the payment of premiums under said policy and supplementary contract; and (2) pay to the insured a monthly income of $ 10 for each $ 1000 of face amount of said policy.
The third policy, dated November 3, 1932, was for $ 5000, and contained a supplementary contract, for which an additional annual premium of $ 5.05 was charged, which provided, in substance, that upon receipt of due proof in writing of the insured's "total and permanent disability which resulted from bodily injury sustained, or disease commencing, after the issuance of this supplementary contract", the company would, during the continuance of such disability, waive the payment of premiums due under said policy and the supplementary contract.
The plaintiff's statement averred that on or about June 25, 1936 he suffered total and permanent disability, due to defective eyesight, "by reason of disease occurring after the issuance of the aforesaid policies," which rendered him practically blind.
The jury returned a verdict in favor of the plaintiff for $ 1406.48. The defendant filed motions for judgment non obstante veredicto and for a new trial, but withdrew the latter motion. The specially presiding trial judge having died before disposing of the rule for judgment non obstante veredicto, it was agreed that it should be argued before, and be disposed of by, the court in banc.
The court in banc, in an opinion by President Judge Sheely of the 51st Judicial District, specially presiding, entered judgment in favor of the defendant, non obstante veredicto. See 52 Dauphin County Reporter 318. Plaintiff appealed to this court.
It was not disputed on the trial that the plaintiff is totally and permanently disabled, due to the fact that his eyesight is so defective as to amount to almost total blindness. The question at issue was whether the disability was the result of disease occurring (policies 1 and 2) or commencing (policy 3) [they mean the same for the purposes of this case] after the issuance of the policies. There was no averment or proof that the disability resulted from any bodily injury, so that feature of the contracts is not involved. The plaintiff's action rested solely on his averment that his disability was the result of disease occurring (or commencing) after the issuance of the policies.
It was important, therefore, that the jury should be properly instructed as to the meaning of the expression, 'disease occurring (or commencing) after the issuance of the policies'.
The charge of the trial judge in this respect was so inadequate and so unfavorable to the defendant that, if it had not been entitled to judgment non obstante veredicto, we would have been obliged, in any event, to grant it a new trial.
He told the jury that "a disease is a lack of ease, pain, distress, trouble, discomfort, a distressing physical condition." While that definition is etymologically correct -- the word being derived from the prefix 'dis', meaning 'want of', 'absence of', etc., and the noun 'ease' -- all the dictionaries agree that the definition above given is obsolete. The usual, common, and ordinary meaning of 'disease', as used in a life insurance policy is, 'malady, illness, sickness, disorder'. [1]
The trial judge specifically instructed the jury that it was for them "to determine whether the plaintiff has shown that he has suffered from a lack of ease, pain or distress, or trouble, or discomfort, or has had a distressing physical condition after the dates of these policies;" which, standing by itself, was tantamount to a direction to find a verdict for the plaintiff; whereas, plaintiff was only entitled to a verdict if his admitted disability was the result of a disease -- malady, illness, sickness, affection or disorder -- which disease occurred or commenced after the dates of the policies in suit.
The defendant did not contend that the policies were void, or that they did not go into effect, or that plaintiff was guilty of any fraud or misrepresentation in securing them. Its contention was that the disability of the plaintiff was not within the coverage of the policies, because it was not the result of disease occurring or commencing after their dates. The case is very similar to Mayer v. Prudential Ins. Co., 121 Pa.Super. 475, 184 A. 267, except that in that case the issue was whether the disability occurred during the period covered by the policy, whereas here it is whether the disability resulted from a disease occurring (or commencing) after its date. We said in the Mayer case (p. 480): "There is a clear distinction between contesting the validity of the policy and denying liability for the reason that disability had not occurred during the period covered by the policy and [was], therefore, a risk which was never assumed."
This distinction, as pointed out by Judge Sheely, disposes of the contention of the plaintiff that the defendant was estopped under the Act of July 19, 1935. P. L. 1319 (40 PS 511a), and under the decision in Prudential Insurance Company v. Kudoba, 323 Pa. 30, 186 A. 793 (1936), from defending the action because of existence of a disease when the policies were issued. The Act of 1935 estops the insurance company from setting up in an action on a life insurance policy the defense that the insured was not in the condition of health required by the policy at the time of the medical examination. The Kudoba case held that the sound health clause of a life policy does not apply to the health of the insured at or prior to the time of his medical examination and operates to protect the company only against subsequent material changes in his physical condition. Neither the Act of 1935, nor the Kudoba case prevents the company from defending an action on the ground that the disability claimed for was not included in the coverage of the policy. In Prudential Insurance Company v. Kudoba, supra, and all the other Pennsylvania cases relied on by the plaintiff, the company denied the validity of the policy. In the present case the validity of the policy was admitted by the company, but it denied that the plaintiff had made out a case within the coverage of the supplementary contract.
In Apter v. Home Life Ins. Co., 266 N.Y. 333, 194 N.E. 846, 848, an action upon two policies of life insurance which contained a supplemental agreement that disability benefits were payable "if .... the insured has become, and is, totally and .... permanently disabled by bodily injury occurring or disease originating after the date on which this agreement becomes effective," the Court of Appeals, speaking through Judge Lehman said: See also, Palumbo v. Metropolitan Life Ins. Co., 293 Mass. 35, 199 N.E. 335, 336.
The facts as developed by the evidence -- considered in the light most favorable to the plaintiff -- may be summarized as follows:
The plaintiff was born on August 24, 1897, and while attending public school, played ball and engaged in other normal activities. He had some difficulty of vision but did not wear glasses because they did not help him. There were times when sitting in the back of the schoolroom he could not see writing on the blackboard. When he was fourteen or fifteen years old his uncle took him to Baltimore and consulted an oculist who gave him glasses, which he did not use because they did not benefit him any. He tried to join the Navy in 1918 but was rejected because of his eyes. He was rejected by the Army for the same reason, but later was passed in the draft, but the armistice came before he was inducted into active service. During this period he went to the Wills Eye Hospital in Philadelphia to correct his trouble with glasses, but without success. In 1920 he began working as an insurance agent for the defendant company and was required to...
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