Pagni v. New York Life Ins. Co.

• Decision Date: 21 June 1933
• Docket Number: 24539.
• Citation: 173 Wash. 322,23 P.2d 6
• Parties: PAGNI v. NEW YORK LIFE INS. CO.
• Court: Washington Supreme Court

23 P.2d 6

173 Wash. 322

PAGNI v. NEW YORK LIFE INS. CO.

No. 24539.

Supreme Court of Washington

June 21, 1933

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

Action by Mary Pagni against the New York Life Insurance Company. Judgment for defendant, and plaintiff appeals.

Reversed and remanded, with direction.

George F. Hannan, of Seattle, for appellant.

Fred W Catlett, of Seattle, for respondent.

MILLARD Justice.

On November 1, 1919, the defendant insurance company issued to Pietro Pagni a life insurance policy under the terms of which the insurer agreed to pay an annual income to the insured in the event he became totally and permanently disabled. The pertinent provisions of the insurance contract read as follows:

'Whenever the Company receives due proof, Before default in the payment of premium, that the Insured, Before the anniversary of the Policy on which the Insured's age at nearest birthday is 60 years and subsequent to the delivery hereof, has become wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days * * * then

'1. Waiver of Premium.--Commencing with the anniversary of the Policy next succeeding the receipt of such proof, the Company will on each anniversary waive payment of the premium for the ensuing insurance year. * * *

'2. Life Income to Insured.--One year after the anniversary of the Policy next succeeding the receipt of such proof, the Company will pay the Insured a sum equal to one-tenth of the face of the Policy and a like sum on each anniversary thereafter during the lifetime and continued disability of the Insured. * * *

'3. Recovery from Disability.--The Company may at any time and from time to time, but not oftener than once a year, demand due proof of such continued disability, and upon failure to furnish such proof, or if it appears that the Insured is no longer wholly disabled as aforesaid, no further premiums shall be waived nor income payments made.'

The insurer also obligated itself to pay to the beneficiary (Mary Pagni, wife) named in the policy $5,000 on the death of the insured. The insured died June 25, 1931. Shortly thereafter the beneficiary received from the insurer the amount payable on the death of the insured.

Mary Pagni, as assignee of the interest of her deceased husband's estate, brought this action to recover total permanent disability benefits for the period November 1, 1927, to November 1, 1930, which, she alleged, should have been paid to the insured. The defendant denied that the insured was totally and permanently disabled as defined in the policy, and denied that the insured had furnished to the insurer due proof of total and permanent disability. As an affirmative defense the insurer alleged that the claim and proofs filed in 1927 disclosed that the insured was not totally and permanently disabled; that the insured abandoned that claim and filed another in 1931 under which the insured was entitled to disability benefits commencing November 1, 1931, and that the insured died June 25, 1931, which was prior to the time that payments under the disability provisions of the policy would be due. At the conclusion of all of the evidence the court sustained defendant's challenge to the sufficiency thereof and instructed the jury 'that as a matter of law the proof submitted to the Company by Pietro Pagni in 1927 did not constitute due proof. * * * No liability arose thereon. You are instructed to bring in a verdict for the defendant.'

Plaintiff appealed from the judgment of dismissal entered by the court on the directed verdict in favor of the defendant.

The facts are as follows and clearly show that in directing a verdict the trial court erred, as there was evidence on behalf of the appellant upon an issue of fact determining the liability:

In 1927, J. H. McMath had been for eleven years a soliciting agent for respondent insurance company. In the early part of 1927 McMath knew that Pagni deemed himself entitled, under his insurance policy described above, to total and permanent disability benefits. Possessed of that knowledge and at the request of Pagni or of some member of Pagni's family, McMath obtained from respondent's local office in Tacoma the requisite blank forms for use of Pagni in making his claim. McMath testified that as a condition precedent to the issuance to him by the local office of the forms for making the claim he (McMath) was required to fill out a form apprising the respondent of the policy number, the claimant's name and address, 'and everything Before we can get a blank.' It was a practice or custom, of which the respondent had knowledge and which it apparently encouraged, of McMath to assist claimants in making out their claims after obtaining for them from respondent's local office the proper blanks therefor. McMath did not write Pagni's policy. However, other members of Pagni's family were solicited and their insurance policies written by McMath. During the time in question McMath was delivering for respondent a disability payment monthly to one of the men residing with the Pagni family. On August 27, 1927, the claim was executed by Pagni on the form secured for him by McMath from respondent's local office. The typing of the claim was done by Rena Pagni with the assistance of McMath; and, when completed, the form was signed by the insured. That claim, so far as material, reads as follows:

'Claim for Disability Benefits

'New York Life Insurance Company, 346 Broadway, New York, N. Y.

'Insured's Statement

'1. No. of Policy 6,595,967. Date of Policy Nov. 1, 1919. Amount, $5,000.

'2. Give name in full: Pietro Pagni. * * *

'8. (a) Are you wholly disabled at the present time? Yes. (b) State cause of disability: See Doctor's report.

'9. (a) On what date did the illness begin that led up to present disability and what was the nature of the illness? April 4th. (b) Give name and address of the first physician consulted at the beginning of that illness: J. Griggs. (c) State date on which you first consulted that physician? April 5th, 1927. (d) Give names of all other physicians consulted and dates of such consultations: J. Griggs.

'10. From what date has your disability prevented you from engaging in any occupation whatsoever for remuneration or profit? April 4th, 1927.

'11. I expressly waive on behalf of myself and of any person who shall have or claim any interest in the above numbered policy, all provision of law forbidding any physician or any other person who has heretofore attended or examined me, from disclosing any knowledge or information which he thereby acquired.

'[Insured's Signature] Pietro Pagni

'Dated at Aug. 22, 1927.'

The foregoing claim was filed by McMath with respondent's local office. Pagni's attending physician made the following report and sent same to respondent's local office, which transmitted both completed forms to respondent's general office in New York City:

'New York Life Insurance Company, 346 Broadway, New York, N. Y.

'Attending Physician's Report on Claim for Disability Benefits.

'1. Name of Insured: Pietro Pagni.

'2. Residence: 1552 So. E. St., Tacoma, Wash.

'3. Is insured now under your treatment? Since Apr. 23, 1927, have seen him professionally at office two or three times; previously at the house.

'4. Date of first consultation in present disability? April 6th, first visit at the house.

'5. History given you at that time? Then had an attack of 'Flu'--fever lasted 4 or 5 days. (a) Date of onset of present disability? April 4, 1927. (b) Predisposing cause, if any, of present disability: Old prostatitis, chronic tonsillitis, pyorrhoea. Last trouble has been attended to by dentist. (c) Names and addresses of any physicians previously consulted by insured: Charles Pascoe, Tacoma.

'6. If you were consulted for any cause prior to the present disability, give dates and details of such consultations or treatments: Do not recollect[173 Wash. 328] --think he had a slight attack of 'flu' during the epidemic, 1918.

'7. Diagnosis and symptoms of disease, infirmity, or injury causing disability: Anaemia--nervous exhaustion, cystitis. 4/11/27--Pus in urine xxxx--Alb. xx 5/20/27--Pus in urine xxxx--Alb. trace 5/18/27--Haemoglobin 57%, Reds 2,900,000, Whites 16,600, Polys. 83%.

'8. (a) Is the insured in your opinion wholly disabled and prevented from engaging in any occupation whatsoever for remuneration or profit? Has been recuperating on the beach & not able to attend to his business this summer. (b) If he is, from what date, to your knowledge, has he been so prevented. Apr. 4, 1927.

'9. Give your opinion as to whether or not the insured will be permanently, continuously and wholly prevented for life from pursuing any and all gainful occupations, by reason of this disability: No.

'[Signature] Joseph F. Griggs, M. D.

'Dated August 22, 1927. Post Office Address: St. Helens Clinic, Tacoma, Wash.'

Respondent conducted an independent investigation of Pagni's condition and received a written report thereon dated September 6, 1927. Respondent's objection to production of that report was sustained; hence the record Before us does not disclose the result of the respondent's investigation.

Respondent's committee on disability claims, New York, N. Y., advised respondent's Tacoma office by letter dated September 2, 1927, of disapproval of Pagni's claim on the ground that the claimant was not wholly and permanently disabled within the terms of the policy. That letter reads as follows:

'Please advise the insured that from the evidence submitted it does not appear to...