New York Life Ins. Co. v. Razzook
| Decision Date | 20 October 1936 |
| Docket Number | 26351. |
| Citation | 61 P.2d 686,178 Okla. 57,1936 OK 651 |
| Parties | NEW YORK LIFE INS. CO. v. RAZZOOK. |
| Court | Oklahoma Supreme Court |
"Total disability from prosecution of usual employment" means inability to follow one's usual occupation, business, or pursuit in the usual way, and may exist although person may perform certain parts of his accustomed work and engage in some of his usual employments, when he cannot to some extent do all parts and engage in all such employments.
Syllabus by the Court.
1. Where a jury is waived, the findings of the court are entitled to the same weight and consideration that would be given to a verdict by a jury, and, if there is any evidence including any reasonable inferences, tending to support the findings, the Supreme Court will not reverse for insufficient evidence.
2. "Total disability" under the provisions of an insurance policy does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. It exists although the insured may be able to perform a few occasional or trivial acts relating thereto, if he is not able to do any substantial portion of the work connected with his occupation.
3. Evidence not shown by the record cannot be considered upon appeal.
Appeal from District Court, Oklahoma County; Warren K. Snyder Special Judge.
Action by Nemer Razzook against the New York Life Insurance Company. Judgment for the plaintiff, and defendant appeals.
Affirmed.
Wilson & Wilson, of Oklahoma City, for plaintiff in error.
Twyford & Smith and William J. Crowe, all of Oklahoma City, for defendant in error.
This is an appeal by defendant below from a judgment rendered against it and in favor of Nemer Razzook for the sum of $2,681.33 representing the amount found due under the disability and waiver of premium provisions of a certain policy of life insurance issued by New York Life Insurance Company. This action was commenced on March 20, 1931, and was first tried February 10, 1932, before Warren K. Snyder, acting as special judge, with a jury. However, a motion for new trial was granted. The case was tried again on October 16, 1934, this time before Warren K. Snyder, special judge, with a jury having been waived, and at the time of the second trial the claim of plaintiff, as reflected by his petition as supplemented and amended, was for compensation at the rate of $70 per month from February 15, 1930, to August 31, 1933, and the recovery back of the sum of $330.33 paid the New York Life Insurance Company after the alleged disability commenced and while it was existing, under waiver of premium provisions of the policy. At the time of the second trial the evidence presented was the same as the evidence at the first trial, a transcript of such evidence being introduced in evidence in lieu of taking new testimony, and, in addition, the deposition of Dr. S. M. Hill of Dallas, Tex., taken July 20 1934, was introduced in evidence. For convenience, the parties will be referred to as they appeared in the trial court; that is, the plaintiff in error will be referred to as defendant and the defendant in error will be referred to as the plaintiff.
On November 18, 1924, the defendant issued a certain policy of life insurance to the plaintiff. Such policy also contained certain disability and waiver of premium provisions, which are hereinafter quoted. The pertinent provisions of the policy are as follows:
"The company agrees to pay to the insured Seventy Dollars each month during the lifetime of insured and also to waive the payment of premium, if the insured becomes wholly and presumably permanently disabled before age 60, subject to all the terms and conditions contained in Section 1 hereof.
This contract is made in consideration of the payment in advance of the sum of $330.33, the receipt of which is hereby acknowledged, constituting the first premium and maintaining this policy for the period terminating on the eighteenth day of November Nineteen Hundred and Twenty-five, and of a like sum on said date and every twelve calendar months thereafter during the life of the insured. * * *
Section 1. Disability Benefits.
1. Total Disability.-Disability shall be deemed to be total whenever the insured is wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit.
2. Permanent Disability.-Disability shall be presumed to be permanent,-(a) Whenever the insured will presumably be so totally disabled for life; or (b)-After the insured has been so totally disabled for not less than three consecutive months immediately preceding receipt of proof thereof. * * *
Waiver of Premium.-The company will waive payment of any premium falling due after approval of said proof and during such disability. Any premium due prior to such approval is payable in accordance with the terms of the policy, but if due after receipt of proof will, if paid, be refunded on approval of proof. * * *
Recovery from Disability. The company may from time to time demand due proof of the continuance of total disability, but not oftener than once a year after it has continued for two years. Upon failure to furnish such proof, or 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."
The court below found that the plaintiff became sick in 1930 and since that time was totally and presumably permanently disabled up to the time of the judgment, within the meaning of the insurance policy, but found that requisite proof of the disability to the insurance company was not made until November 10, 1930, and therefore allowed recovery from that date down to the 31st of August, 1933, which was the limit fixed by plaintiff in his petition, and in addition the trial court allowed the recovery back by the plaintiff of a premium paid to defendant amounting to $330.33, representing the annual premium due November 18, 1930, paid by plaintiff but recoverable by him under the waiver of premium provisions of the policy.
The two assignments of error which are pressed by the defendant upon this appeal are as follows:
(1) The judgment of the trial court is against the weight of the evidence and is not sustained by sufficient evidence.
(2) The judgment of the trial court is excessive and should be reduced by the sum of $1,146.99 by reason of the following facts:
(a) Certain depositions of witnesses in a new and different case brought by Nemer Razzook against New York Life Insurance Company to recover for disability since August 31, 1933, which depositions were taken after the second trial of the case now being considered on this appeal, disclosed that said Nemer Razzook, plaintiff herein, had engaged in the services of certain wholesale houses in the city of Dallas, Tex., by furnishing such wholesale houses with certain credit information for which the said Nemer Razzook was paid for the period September 10, 1932 to August 31, 1933, the sum of $816.66, thereby tending to show that the said plaintiff was not totally disabled during said period, in spite of the fact that the judgment appealed from awarded him total disability benefits for said period at the rate of $70 per month; and (b) since such depositions showed plaintiff was not totally disabled during said period of time, the waiver of premium provisions of the policy would not be operative and there would be due to the defendant the sum of $330.33, representing the premium falling due November 18, 1932.
We shall consider the assignments of error relied upon in order.
1. As to the sufficiency of evidence to sustain the judgment. Where a jury is waived, the findings of the court are entitled to the same weight and consideration that would be given to a verdict by a jury, and, if there is any evidence, including any reasonable inferences, tending to support the findings the Supreme Court will not reverse for insufficient evidence. Foreman v. Needles, 78 Okl. 105, 188 P. 1087. Was there, then, any evidence reasonably tending to support the finding that the plaintiff was totally and presumably permanently disabled...
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