New York Life Ins. Co. v. Lecks

• Decision Date: 27 April 1935
• Parties: NEW YORK LIFE INS. CO. v. LECKS.
• Court: Florida Supreme Court

165 So. 50

122 Fla. 127

NEW YORK LIFE INS. CO. v. LECKS.

Florida Supreme Court, Division B.

April 27, 1935

On Rehearing Jan. 16, 1936.

Error to Circuit Court, Putnam County; Geo. Wm. Jackson, Judge.

Action by Frederick H. Lecks against the New York Life Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed on condition of remittitur; otherwise reversed.

TERRELL J., dissenting on petition for rehearing.

On Petition for Rehearing.

COUNSEL Doggett, McCollum, Howell & Doggett, of Jacksonville, for plaintiff in error.

Alden S. Bradley, of Palatka, and Carter & Pierce, of Marianna, for defendant in error.

OPINION

ELLIS Presiding Justice.

The writ of error is taken to a judgment of the circuit court for Putnam county in favor of the plaintiff, Lecks, against the New York Life Insurance Company on two policies of life insurance containing disability benefit clauses under which the company agreed to pay to Lecks twelve dollars and a half each month on each policy during the lifetime of the insured also to waive the payment of premiums if the insured became wholly and presumably permanently disabled before he became 60 years of age.

Each policy was written for $1,250 in case of death. The beneficiary named in each was the mother of the insured Lecks. One policy was issued in December, 1925, and the other was issued in November, 1925. The annual premium required to be paid on older policy, or one first issued, was $45.46. The premium required to be paid on the latter policy was $46.99 annually.

On December 20, 1930, the insured became wholly disabled by bodily injuries. The insurance company, upon being notified of the injuries sustained by Lecks, paid to him the monthly disability benefits provided for under the policies up to and including November 20, 1932, a period of nearly one year and eleven months. On that date it ceased to make payments, and demanded of Lecks the payment of the premium of $45.46, which became due on the face of the policy on December 27, 1932, which the assured, Lecks, paid to prevent a lapse of the policy.

In June, 1933, Frederick H. Lecks, the insured, brought his action against the insurance company to recover the amount due as disability benefits under the policies since the last payment; the recovery of the premium of $45.46 paid on one of the policies under protest; and to prevent a lapse of the policy and for attorney's fees.

A motion was made by counsel for the insurance company to strike from the declaration so much as demanded a return of the premium of $45.46, upon the ground that it was voluntarily made without duress or coercion exercised by the Company, so that the plaintiff was estopped from claiming a return of it. That motion was overruled.

The company interposed pleas denying the physical disability of the plaintiff within the meaning of the insurance contract since November 20, 1932, and denied that he was prevented by such disability from engaging in any occupation whatsoever for remuneration or profit.

There was a trial of the case upon the issues presented by the pleas, and a verdict was obtained by the plaintiff in the sum of $231.59, which included the amount of the premium of $45.46 paid by the plaintiff on one of the policies of insurance under protest as alleged. The verdict also found for the plaintiff the further sum of $212.50 as attorneys' fees. Judgment was entered upon the verdict. A motion for a new trial was overruled, and the defendant insurance company, took a writ of error.

Counsel for plaintiff in error urge two propositions in their brief for consideration by this court. The first is that the plaintiff is not entitled to recover from the company the insurance premium of $45.46 paid by him because it does not appear from the pleadings that it was paid under duress or coercion. The second proposition is that the plaintiff should not recover attorneys' fees. That proposition rests upon the fact, which it is claimed is established by the evidence, that the liability of the company after November 20, 1932, was questioned in good faith; that a reasonable doubt existed as to the disability of the insured within the meaning of the policy of insurance after the above-mentioned date which could be determined only by a court of competent jurisdiction after a full investigation; therefore the allowance of attorney's fees in such case under the penalty statute constitutes a denial of due process and equal protection by the laws of Florida.

That the plaintiff had sustained serious and very painful injuries which 'wholly and presumably permanently disabled' him the evidence sufficiently establishes. That such injuries continued until July 25, 1932, when he was discharged from the Government Hospital at Washington, is also sufficiently established. The defendant continued after that date for a period of four months to pay the disability benefits, when it then stopped payments.

During that period of four months there was evidence from which the jury might have reasonably found that the plaintiff's physical condition had sufficiently improved to enable him to walk, transact a little business, drive an automobile, go swimming, and do light work.

Both legs of the plaintiff were injured. The right leg became serviceable, and, according to the view of one physician or surgeon, would probably not be the cause of any further trouble, but the left leg is the 'site of a non-union ot the tibia,' and of a chronic bone infection at the site of the injury. The view was expressed that the infection would have to be eradicated, requiring possibly several operations and months of time, 'after which the nonunion will have to be overcome by additional bone graft, which may or may not be successful.' It was said by one witness that an amputation of the leg would better the plaintiff's condition, or even a less severe treatment of 'bone grafting' would probably improve his condition.

The disability clause of the policies provides that the disability benefit will be paid each month if the insured becomes 'wholly and presumably permanently disabled.'

The policy defines total disability to be such injury or disease as to prevent the insured 'thereby from engaging in any occupation whatsoever for remuneration or profit.' The policy also provides that disability shall be presumed to be permanent whenever the insured will presumably be so totally disabled for life, or after the insured has been so totally disabled for not less than three consecutive months immediately preceding receipt of proof thereof.

The phrase 'wholly and presumably permanently disabled' means total disability, which the policy defines to be such injury or disease as will prevent one so affected 'from engaging in any occupation whatsoever for remuneration or profit.' As thus defined, the phrase 'wholly disabled' or 'totally disabled' is not absolute in meaning; that is, free from qualification or restriction.

A person may be injured or diseased to such an extent as to prevent him from engaging in an occupation for remuneration or profit, but which would not prevent an occasional subsidiary employment or avocation.

The term 'occupation' is itself a relative one, having relation to one's capabilities. A person whose occupation is that of merchant, or mechanic, or day laborer, who becomes 'wholly disabled' from engaging in his occupation, might nevertheless, after years of preparatory study and mental training, follow some gainful occupation, but, until that end is accomplished and the insured is receiving profits or remuneration from his new vocation, the insurance company carrying the insurance for the injured person would not under a clause like the one included in the policies in this case be justified in refusing the monthly benefit payments on the possibility of the insured ultimately obtaining profits from following a different occupation from that which he was engaged in when the policy was written. Nor would it be justified in discontinuing the monthly disability payments so soon as the injured person recovered partially from his injuries enough to enable him to occasionally render some small service related or unrelated to his occupation.

The question, however, of the application of the disability clause in any case is under proper pleadings one of fact and not of law. See Equitable Life Assurance Society of U.S. v. Wiggins, 115 Fla. 136, 155 So. 327.

In the case of Cassens v. Metropolitan Life Ins. Co., 114 Fla. 659, 154 So. 522, this court, speaking through Mr. Justice Buford, approved the rule announced in Metropolitan Life Insurance Co. v. Blue, 222 Ala. 665, 133 So. 707, 79 A.L.R. 852, that disability clauses in insurance policies, like the clause under consideration in this case, are construed as affording a reasonable time to ascertain whether the disability is 'total and permanent' and to keep open the question if after events disclose that it was not in fact permanent but only reasonably appeared so to be. See, also, Stossel v. Gulf Life Ins. Co. (Fla.) 161 So. 835, decided January 7, 1935.

The policies in this case each contain what is known as a 'Recovery from Disability Clause,' under which the company may from time to time demand proof of the continuance of total disability, but not oftener than once a year after it has continued for two full years. It also provides that, if at any time it shall appear to the company that the insured is able to engage in any occupation for remuneration or profit, no further income payments shall be made nor premiums waived.

In the case of The Equitable Life Assurance Society of U.S. v McKeithan, 160 So. 883, decided March 25, 1935, this court held that total disability as used in a policy of life...