Prudential Ins. Co. of America v. Hampton

• Decision Date: 12 January 1934
• Parties: Prudential Insurance Co. of America v. Hampton.
• Court: United States State Supreme Court — District of Kentucky

252 Ky. 145

Prudential Insurance Co. of America v. Hampton.

Court of Appeals of Kentucky.

Decided November 3, 1933.

Rehearing Denied January 12, 1934.

1. Insurance. — Where insured proved total and permanent disability under group life, accident, and disability policy, and insurer offered no proof in support of controverted allegation that insured refused information concerning his condition, directed verdict for insured was proper.

2. Insurance. — Judgment under group life, accident, and disability policy should have provided for cessation of monthly payments whenever disability ceased to be total and permanent and have preserved insurer's right to proof concerning insured's condition.

Appeal from Perry Circuit Court.

LOW & BRYANT and CRAFT & STANFILL for appellant.

ROY HELM and S.M. WARD for appellee.

OPINION OF THE COURT BY JUDGE PERRY.

Affirming.

Walter Hampton, a colored man living in Hazard, entered the employment of the Louisville & Nashville Railroad Company in October, 1929. In April, 1930, following, he elected to accept the benefits of a group policy of insurance No. 1788 which his employer railroad company had previously secured from the appellant, Prudential Insurance Company of America, whereby the latter insured such of the railroad company's employees as chose to avail themselves of the group policy, and was thereupon given a certificate No. 71550, showing appellee's insurance thereunder according to the terms and provisions of the policy. There appears in the record the stipulation of the parties that this group policy was in effect at all times here involved.

This policy by its provisions insured the employees accepting it against death, accident, and disability. As to the latter, it provided that if any person insured under the policy should become totally and permanently disabled, either physically or mentally, to the extent of rendering him wholly and permanently unable to engage in any occupation or to perform any work for compensation of financial value during the remainder of his lifetime, and if such should occur after the payment of the first premium and while the policy was in effect and when the insured was less than sixty years of age, the company would during the successive renewal periods waive the payment of the premiums of such disabled person becoming due after receipt by the company of proof of such disability, and would pay to said person the amount insured in twenty-four monthly installments during two years, the first of which was to be paid him upon the company's receipt of due proof of such disability, any insurance remaining at the death of the said person to be paid to his beneficiary. Also, it was provided that notwithstanding the acceptance by the company of this proof of total and permanent disability, the insured, upon demand of the company from time to time, for the purpose of verifying that such disability was permanent and not temporary, should furnish due proof that he actually continued in the state of such disability, and upon his failure to furnish such proof, no further proportional parts of the premiums becoming due on the policy would be waived nor further monthly installments paid on account of such disability.

In April, 1931, it appears that the insured suffered an attack of pneumonia fever, during which he was treated by Dr. Combs, a colored physician of Hazard, Ky., and also that he, during the late stages of his illness, went to Louisville to the hospital maintained by the Veterans' Bureau for a day or two for a diagnosis of his condition and also to make application for compensation therefor. It appears he was there examined and a diagnosis of his condition made, but that compensation was denied him, as counsel states, because of his not having been regularly inducted into the service.

Hampton having failed to recover from this illness, it appears that he furnished the appellant company proof of his then claimed total and permanent disability, which was supported by the statement of Dr. Sumner that such was his condition, due to his sickness having developed into tuberculosis. No disability insurance, however, was paid by the appellant company after its receipt of this proof of disability nor after its receipt of additional proof of his continuing state of total and permanent disability, which was furnished the company at its request therefor in September, 1931. This later proof was given by the statement of the three doctors, F.W. Caudill, Carlow B. Combs, and A.M. Gross, all stating that his condition continued to be one of total and permanent disability and that the time of any recovery therefrom was "indefinite" and that in their opinion "he was so disabled that he would for all time be prevented from engaging in any gainful work."

It also appears that the appellee was in June, 1931, due to his continuing disability, given a leave of absence by his employer for a six months' period and the same extended at its termination for a further month.

It further appears that the appellant company, being advised that the Veterans' Bureau had a record of the insured's physical condition and disability, based upon its examination made of him during the prior June while at the hospital, requested that the bureau furnish it with the report. The bureau expressed its willingness to do so, but stated it could only be done with the consent of the insured. The company then asked the insured to furnish or consent to the bureau's furnishing this additional report bearing upon his disability, which the insured declined to do.

The appellant company continuing its refusal to pay the insured any disability insurance, which he claimed was due him under the provisions of the policy, in December, 1931, he filed suit against it, wherein by his petition he set out the facts of his employment, his election and acceptance of the benefits of the group policy issued his employer by the appellant, his subsequent sickness and resulting total and permanent disability, his proof thereof given the appellant, and appellant's refusal to pay the insurance due, and...