New England Mut. Life Ins. Co. v. Hurst

• Citation: 199 A. 822
• Decision Date: 13 June 1938
• Docket Number: No. 31.,31.
• Parties: NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS., v. HURST.
• Court: Court of Appeals of Maryland

199 A. 822

NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS.,

v. HURST.

No. 31.

Court of Appeals of Maryland.

June 13, 1938.

Appeal from Baltimore City Court; Robert F. Stanton, Judge.

Action by John E. Hurst against the New England Mutual Life Insurance Company of Boston, Massachusetts, to recover income payments under life policies. From a judgment for plaintiff, defendant appeals.

Affirmed.

Argued before BOND, C. J., and URNER, OFFUTT, PARKE, SLOAN, MITCHELL, SHEHAN, and JOHNSON, JJ.

Jacob S. New and W. Conwell Smith, both of Baltimore (George Hoague, of Boston, Mass., on the brief), for appellant. William D. Macmillan and Lawrence Perin, both of Baltimore (Semmes, Bowen & Semmes, of Baltimore, on the brief), for appellee.

PARKE, Judge.

The New England Mutual Life Insurance Company issued on February 16, 1916, an insurance policy on the life of John E. Hurst of W in the amount of $20,000, which was made payable on death to designated beneficiaries. Attached to this policy, and issued in consideration of the payment of additional premiums and of the application by the assured, was a supplemental agreement. Omitting some immaterial formal parts, the agreement is of this form:

"New England Mutual Life Insurance Company "Boston, Massachusetts.

"Supplemental Agreement for Income and Waiver of Premiums During Total and Permanent Disability, and for Double Indemnity in Case of Death from Accident. "Last extra premium of $379.00 due August 28, 1935. "In consideration of * * * the New England Mutual Life Insurance Company issues this Supplemental Agreement to be attached to and made a part of its Policy No. 305,847 upon the life of John Edward Hurst of W.

"Income and Waiver of Premiums During Total and Permanent Disability. "Upon receipt of due proof that Insured has become physically or mentally incapacitated so as to be wholly and permanently unable to engage in any occupation or profession or to perform any work whatsoever for compensation, gain, or profit, and that such disability has occurred while the Policy and this Agreement are in full force and prior to the policy anniversary nearest his sixty-fifth birthday, and has existed for a period of ninety days, the Company will pay to the Insured a Monthly Income of Two Hundred Dollars and will also waive the payment of every premium thereafter due upon the Policy and this Agreement, subject to the conditions herein set forth.

"The total and irrecoverable loss of the sight of both eyes, or the severance of both hands at or above the wrists, or of both feet at or above the ankles, or of one entire hand and one entire foot, shall be considered total and permanent disability. * * *

"The Company shall have the right at any time or times during the first year after receipt of proof of such disability, and thereafter not oftener than once a year, to require satisfactory proof of the continuance of total disability. Upon failure to furnish such proof, or if it shall appear at any time that the Insured is no longer totally and permanently disabled, this Agreement shall terminate, no further income will be paid nor premium waived, and all premiums thereafter due under the Policy shall be payable in conformity with its terms.

"This provision shall terminate if and when the Insured shall engage in military or naval service in time of war, or in any work in connection with actual warfare, and shall not be effective if the disability of the Insured shall result from self-inflicted injury or from any aerial or submarine casualty."

A similar policy and supplemental agreement were issued on March 22, 1916, for smaller amounts by the same assurer to the assured.

On February 4, 1937, the assured brought an action at law against the assurer to recover for the period which began with April 11, 1936, and ended with November 20, 1936, the disability benefits promised by both policies. The defendant filed the general issue pleas, and issues were joined and the trial was had before a jury. A verdict was returned for the amount of the monthly income for the five months which ended in September, and the appeal is taken from the judgment entered against the defendant on the verdict. There are no questions on the rulings on the admissibility of testimony; and the single exception is to the action of the court on the prayers. The six prayers offered by the plaintiff were granted. The third prayer of the defendant instructed the jury in reference to the burden of proof. It was granted, but the other nine prayers of the defendant and its special exceptions to the granting of plaintiff's first, second, fourth and sixth prayers on the grounds that the first three were an incorrect statement of the law and that the sixth prayer was an erroneous statement of the measure of damages —in that the computation of income was fixed at the date of the beginning of disability instead of the day of the defendant's receipt of proof of loss. The questions raised by the granted and rejected prayers do not involve matters of practice or of compliance with the formal requirements of recovery, but present the fundamental differences of the parties with reference to the proper construction of the contract in application to the disability of the plaintiff.

The testimony on the record tends to show that some years after the writing of the policies of insurance the plaintiff began to drink, immoderately, intoxicating liquor. The habit continued until he became a dipsomaniac. From 1934 until April 11, 1936, his condition became progressively worse, notwithstanding medical care and attention, and restraint and the treatment of specialists in sanitariums. On April 5, 1936, he became dangerously ill of chronic alcoholism. Medical attention was required, and he was confined to his home, and kept in bed so far as was possible for his attendants to enforce. After a slight improvement he became worse, and he was sent, on May 19, to a local hospital for restraint and hospitalization. He remained there until June 25, when he was taken to his home in the care of a special nurse and there received medical attention until July 9th, when, notwithstanding all precautions, he resumed his drinking and his condition became so grave that he was then removed to a sanitarium in North Carolina, to remain there until the nervous changes of defective will, judgment, memory and general moral fibre should be restored sufficiently, if this were possible, to enable him to be released.

The plaintiff remained continuously in the sanitarium until November 20, 1936, when he left and returned to his home. He went to work within a week as a salesman for bond and stock brokers, and the testimony is that he was so employed without break, except that from August 30, 1937, until September 11, he was in the hospital to be treated for chronic alcoholism.

As was expressed by the distinguished doctors, who attended the plaintiff, chronic alcoholism is a disease which results after the continued abuse of drinking alcoholic liquor gives rise to an uncontrolled craving or desire which is accompanied by the lack of judgment, will power, and moral fibre on the part of the victim to combat the craving. The diagnosis was that the plaintiff was afflicted with this disease, and its coincident secondary physical, nervous and mental effects; and the prognosis was that he would not recover.

There is further testimony from which, if believed, the jury might find that during the whole period embraced by his claim he was thus physically or mentally, and at times both physically and mentally, continuously, incapacitated so as to be wholly unable to engage in any occupation or profession or to perform any work whatsoever for compensation, gain or profit; and further that, at the beginning of this period, his disability was of such a nature that it was reasonably certain that it would continue without abatement or cessation; and that such disability did continue for a period of more than ninety consecutive days next ensuing the 11th of April, 1936.

Other proof tended to establish that the disability of April 11, 1936, had existed for a period of ninety days when the assurer was notified on July 29, 1936, that a disability claim would be made, and was requested to supply the plaintiff with the requisite forms. The assurer furnished the forms, which were made by the attending physicians, and received by the assurer on September 21. On September 28, 1936, the medical director of the Company disapproved the payment of the claim.

Upon this testimony and the construction of the policy to the effect that the condition for the payment of income that the assured "has become physically or mentally incapacitated so as to be wholly and permanently unable to engage in any occupation or profession or to perform any work whatsoever for compensation, gain or profit" contemplates such a disability which exists for a period of ninety days, and is of such a nature that its duration is such as to be reasonably certain that the disability would continue for an indefinite and indeterminable time, the court at nisi prius submitted the case to the jury. If the construction of the policy be sound, the action of the court was right.

After November 20, the total and permanent nature of the disability ended. So, the disability did not exist when the action on the policies was brought on February 4, 1937. In fact, the plaintiff had been gainfully employed since within a week after November 20, and he does not assert a right of recovery for any other than the period for which the action is brought. Thus the principal question is whether a total and permanent disability must subsist continuously in time from its beginning until the expiration of the term of assurance so that, if action be brought, a recovery may not be had unless the testimony prove the total and permanent disability until the time of suit brought, and the certainty of the continuation of such disability until...