Penn Mut. Life Ins. Co. v. Milton

• Decision Date: 11 April 1925
• Docket Number: 15847.
• Citation: 127 S.E. 798,33 Ga.App. 634
• Parties: PENN MUT. LIFE INS. CO. v. MILTON.
• Court: Georgia Court of Appeals

127 S.E. 798

33 Ga.App. 634

PENN MUT. LIFE INS. CO. v. MILTON.

No. 15847.

Court of Appeals of Georgia, Second Division

April 11, 1925

Syllabus by the Court.

Where a policy of life insurance contained the following provisions:

"If after one year's premium shall have been paid on this policy and before default in the payment of any subsequent premium, the insured shall furnish to the company due proof that, prior to the maturity of this policy and before attaining the age of sixty, he has become wholly disabled by bodily injury or disease so that he is and thereby will be permanently and continuously unable to engage in any occupation whatever for remuneration or profit, and that such disability has existed continuously for not less than sixty days prior to the furnishing of proof, thereupon the company will grant the following benefits:

(a) Waiver of Premium--The company by indorsement hereon shall waive the payment of the premiums which thereafter may become due under this policy during the continuance of the said total disability of the insured. In making any settlement under this policy the company shall not deduct any part of the premium so waived, and the nonforfeiture values of this policy shall increase from year to year in the same manner as though any premium waived under this provision had been paid in cash.

(b) Annuity Payment--Furthermore, the company will pay to the insured each month fifty dollars, being a sum equal to one per cent. of the face of this policy, the first monthly payment to be made six months after receipt of due proof of said total disability accompanied by this policy for indorsement, and subsequent payments monthly thereafter during the continuance of said total disability of the insured and prior to the maturity of this policy. The amount payable at the maturity of this policy shall not be reduced by any payments made under this disability provision."

Held: A "disability which lasted sixteen months and from which the insured has recovered is a permanent disability within the meaning of the provisions of the policy." See instructions by the Supreme Court in answer to questions certified. Penn Mutual Life Insurance Co. v Milton, 160 Ga. 168 (127 S.E. 140).

But under the provisions of the policy the insurer would not be liable for the monthly payments on account of the disability in the absence of a waiver, unless proof of the disability was submitted during the existence thereof, nor until the expiration of six months thereafter. It was a further condition of the defendant's liability that the proof should show the then present fact of the disability and its previous existence for a period of 60 days. The petition being silent as to the date when the proof was furnished, and failing to show the material facts contained therein, and having alleged only in general terms that the plaintiff had become wholly disabled, "so that he was permanently and continuously unable to engage in any occupation whatever for remuneration or profit" for the period for which his claim was asserted, and that he had "filed proof of his total and permanent disability, as required by the terms of said policy, and petitioner's claim comes within the terms and provisions of said policy, and petitioner is justly entitled to the amount which he claims of defendant," the petition was subject to the objections, raised by demurrer, that it failed to show by facts alleged how long the plaintiff's disability continued after he had furnished the required proof of his disability, and therefore failed to establish his right to recover any certain sum; that the date of the furnishing of the proof was not alleged; that the averment that he had furnished proof of disability as required by the policy was a mere conclusion of the pleader; and that the petition does not show, except by conclusions, from what bodily disease the plaintiff was suffering, or wherein or how he had become wholly disabled so as to entitle him to maintain the action.

Mere conduct on the part of the insurer, claimed as a waiver or estoppel, cannot have that effect, if a forfeiture had already taken place or if liability could never have been fixed under the policy. Accordingly, if the plaintiff did not submit proof of disability according to the requirements of the policy, or, even though he did so, if the disability did not continue thereafter for the period of 6 months, nothing being shown as a waiver or estoppel occurring in the meantime, his claim for the particular disability expired; and, if so, it was not revived by anything contained in the defendant's letter written thereafter as set forth in the petition.

Error from Superior Court, Cook County; R. G. Dickerson, Judge.

Action by Edgar B. Milton against the Penn Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed in accordance with Supreme Court's answers to certified questions. 160 Ga. 168, 127 S.E. 140.

Randolph, Parker & Fortson, of Atlanta, and Branch & Snow, of Quitman, for plaintiff in error.

Bryan & Middlebrooks, of Atlanta, and H. W. Nelson, of Adel, for defendant in error.

BELL, J. (after stating the facts as above).

Construing the plaintiff's allegations most strongly against him, as must be done on demurrer, it appears that the alleged disability terminated on April 24, 1923, and thus lasted for a period of only 16 months. The defendant has urged that the petition therefore shows upon its face that the plaintiff was never "permanently" disabled within the meaning of the policy. Upon this point we certified certain questions to the Supreme Court, and in the answers have been instructed as follows:

"Where provisions of a policy of life insurance provide that, if the insured, after one year's premium shall have been paid and before default in the payment of any subsequent premium, shall furnish to the company due proof that, prior to the maturity of the policy and before attaining the age of 60, he has become wholly disabled by bodily injury or disease, so that he is and thereby will be permanently and continuously unable to engage in any occupation whatever for remuneration or profit, and that such disability has existed continuously for not less than 60 days prior to the furnishing of proof, the company will waive the payment of the premiums which may thereafter become due under the policy during the continuance of such total disability, and will pay to the insured each month $50, the first monthly payment to be made 6 months after the receipt of due proof of the said total disability, during the continuance of such total disability of the insured, and prior to the maturity of the policy, a disability which has lasted for 16 months, and from which the insured has recovered, is a permanent disability within the meaning of the provisions of the policy." 160 Ga. 168, 127 S.E. 140.

2. We are nevertheless of the opinion that the petition was subject to certain grounds of the demurrer. It is urged in ground 5 that--

"The petition fails to show by the facts alleged how long the disability of the plaintiff continued after he had furnished due proof of such disability, if any existed, and therefore fails to establish his right to recover any certain sum for such disability."

We agree with this contention. In the absence of a waiver of proof of disability as required by the terms of the agreement, the insurer would not be liable for the monthly payments until the expiration of 6 months after the submission of such proof, and the petition does not definitely show when the proof was submitted, nor what period, if any, elapsed subsequently to the making thereof. Unless proof of the disability was given to the company more than 6 months before the...