Parks v. Maryland Casualty Co., 8196.

• Decision Date: 31 March 1932
• Docket Number: No. 8196.,8196.
• Citation: 59 F.2d 736
• Parties: PARKS v. MARYLAND CASUALTY CO.
• Court: U.S. District Court — Western District of Missouri

59 F.2d 736 (1932)

PARKS v. MARYLAND CASUALTY CO.

No. 8196.

District Court, W. D. Missouri, W. D.

March 31, 1932.

C. S. Walden and Martin, Scheufler & Carbaugh, all of Kansas City, Mo., for plaintiff.

James D. Reeves and Harris & Koontz, all of Kansas City, Mo., for defendant.

OTIS, District Judge.

Defendant has moved to strike from the second amended petition of the plaintiff certain parts thereof, as follows:

(1) That part in the second paragraph reciting that a verified copy of the policy of insurance is attached to the petition.

(2) That part of the petition which refers to facts occurring subsequent to the filing of the petition.

(3) That part of the petition in which the plaintiff seeks to recover damages on account of injury for the period of his life expectancy.

(4) That part of the petition which asks damages for vexatious delay.

Upon the oral argument the defendant did not insist upon the first two subdivisions of its motion, and the plaintiff agreed that the last subdivision of the motion might be sustained. What is for consideration then is the third subdivision of the motion.

The plaintiff's petition, after setting out that part of the policy of insurance wherein it is agreed that, "after the payment of weekly indemnity for fifty-two (52) weeks as aforesaid, the company will continue weekly payments of the same amount thereafter so long as the insured shall be wholly and continuously disabled by such bodily injury from engaging in any occupation or employment for wage or profit," alleges that the plaintiff, by reason of the accident described, is "wholly and continuously disabled by such bodily injury from engaging in any occupation or employment for wage or profit and will be so disabled for and during the balance of his natural life." It is further alleged that the defendant "has deliberately breached, rejected, repudiated and abandoned its contract of insurance with the plaintiff without just cause or excuse." It is alleged that the plaintiff "has fully performed all the terms and conditions of his contract on his part." The plaintiff prays for judgment not only for what may now be due under the contract by its terms, but for the full amount which the plaintiff would recover at the fixed weekly indemnity for the period of his life expectancy.

1. The theory that an insured in a policy of accident insurance may presently sue for the recovery of what by the terms of the insurance contract might be coming to him in the future if there is a repudiation of the entire contract by the insured has quite often been presented as in the petition here, since a decision by the Court of Appeals for the Sixth Circuit in Federal Life Insurance Company v. Rascoe, 12 F.(2d) 693, 697. The decision in that case was chiefly based on the opinion of the Supreme Court of the United States in Roehm v. Horst, 178 U. S. 1, 20 S. Ct. 780, 785, 44 L. Ed. 953. The Rascoe Case represents the extreme development of the theory. It was decided by a divided court, a very convincing dissenting opinion by Circuit Judge Denison holding that the majority had in its application of the law to the facts extended the doctrine of Roehm v. Horst beyond the limits of that doctrine as it was declared by the Supreme Court.

The petition here, in the part thereof now under consideration, is not good even under the majority opinion in Federal Life Insurance Company v. Rascoe. That opinion holds that before a suit for damages for future payments may be presently maintained, the contract must be executory on both sides. But it was ruled that the particular contract there considered was executory on both sides since there remained for the insured certain things to be done before he was entitled to continued payments for total disability. The difference between the dissenting opinion and the majority opinion chiefly is the view of Judge Denison that the contract was not executory on the part of the insured, that the things which were yet required of him were conditions precedent to the receipt of future payments and not obligations imposed upon him by the contract.

The Rascoe Case does not support the petition here, because the plaintiff here alleges he has performed all obligations required of him by the contract. Nothing remains for him to do; so far as he is concerned, if the allegations of the petition are to be taken at their face value, the contract has been executed.

Learned counsel for the plaintiff, recognizing that even the majority opinion in the Rascoe Case affords insufficient basis for the plaintiff's petition, earnestly contends that Roehm v. Horst does not rule that a contract must be executory on both sides before an...