Prunty v. Equitable Life Assur. Soc. of the United States

CourtSupreme Court of Utah
Citation86 Utah 236,42 P.2d 219
Decision Date09 March 1935
Docket Number5501

Appeal from District Court, Third District, Salt Lake County, Roger I. McDonough, Judge.

Action by Peter F. Prunty, by his guardian, Niel F. Prunty, against the Equitable Life Assurance Society of the United States. Judgment for defendant, and plaintiff appeals.


Willard Hanson and K. C. Tanner, both of Salt Lake City, for appellant.

Hurd &amp Hurd, of Salt Lake City, for respondent.



MOFFAT, Justice.

This is an action on a group policy of insurance issued by the defendant and respondent, Equitable Life Assurance Society of the United States, a corporation, to the Ogden Union Railway & Depot Company, insuring employees of the Depot Company.

The action was brought by the plaintiff and appellant, Peter F. Prunty, by his guardian, Niel F. Prunty, to recover disability benefits alleged to be due under such policy of group life insurance. The policy was dated January 1, 1925. By the terms of the policy the respondent insured the lives of the employees of the classes therein specified, for the term of one year from the register date of the policy, or such part of such term as the employees shall respectively remain in the employ of the employer in the specified classes of employees. Upon due proof of death of any employee covered by the policy of insurance, occurring while insured under the policy and while the policy remained in force, the insurance company agreed to pay the amount for which the employee's life was insured; the policy to be automatically renewed upon the conditions therein set forth.

The policy also contained a provision that if proof be furnished the Society (respondent insurance association) that any employee before reaching the age of 60 years should become wholly disabled by bodily injury or disease, and should be wholly and presumably permanently prevented, because of such disability, for life, from pursuing any and all gainful occupation, such employee was to be paid during such disability the full amount of the insurance upon the life of such employee in monthly installments.

It was provided in the policy issued to the employer that there should be issued by the employer to the employee a certificate showing the amount of insurance to which the employee was covered, subject to the terms and conditions of the group life insurance policy mentioned in the individual certificate.

It is upon the provision relating to disability that this action is brought. There are other provisions of the policy to the effect that on the first day of each month the premiums for the amount of insurance in force for that month should be paid in advance. It was also provided that the policy, together with the employer's application and the individual applications of the employees, if any, who were insured, "shall constitute the entire contract between the parties." Under the clause of the policy relating to "certificates and conversions," it was provided that the Assurance Society was to issue to the employer for delivery to the employee whose life was insured, an individual certificate setting forth a statement as to the insurance protection to which such employee was entitled under the terms of the policy, together with a provision to the effect that in case of termination of employment for any reason whatsoever while insured, the employee "shall be entitled to have issued to him without further evidence of insurability, and upon application made to the Society within thirty-one days after such termination" and upon payment of premium, a policy of life insurance equal in amount to the protection under the group policy before termination of employment.

There were further provisions as to "New Employees," "Employer's Reports," and "Terminations" under which the employer was required to furnish the Society with the names of all employees, as they became eligible, each employee automatically coming under the provisions of the policy at the completion of six months' service for the amount of $ 250, and upon completion of one year's service for the amount of $ 500. During the continuance of the contract all changes of status in the group of employees were required to be reported to the Society within one month after the changes occurred. The insurance covering such changes and the premium re-adjustment corresponding to the changes were to become effective from the date when the changes occurred.

The insurance under the terms of the policy upon the life of any employee covered by the contract, it was provided, should automatically cease and determine upon the termination of such person's employment with the employer without regard to the cause of such termination, except that the employer had the option to elect that all employees who, while insured, were temporarily laid off or given leave of absence or temporarily disabled, were to be considered in the employment of the company during such period. For the purposes of insurance, re-employment was to be classed as new employment and subject to all the requirements thereof and the issuance of a new certificate.

To the complaint, setting forth in substance the foregoing statement relating to the insurance and allegations of injury and presumably permanent disability of Peter F. Prunty, answer was filed, and the issues thus formed were tried to a jury. After both parties had submitted evidence and rested the cause, defendant interposed a motion for a directed verdict in favor of defendant of no cause of action. The motion was granted, the verdict rendered as directed, and judgment entered thereon. The motion for a directed verdict was granted upon the ground that Peter F. Prunty was not insured under the terms of the insurance policy by virtue of his employment at the time of the alleged total and permanent disability, "and on that ground alone." The trial court further indicated that on other issues the plaintiff would have been entitled to have the cause submitted to the jury; but upon failure of proof of being insured at the time of the alleged injury the other issues became immaterial.

The assignments of error all go to matters contained in the bill of exceptions. Respondent has interposed in this court a motion to strike the bill of exceptions. If the motion to strike the bill of exceptions is well taken and the bill stricken, the record is left with nothing before the court to review. It therefore becomes necessary to dispose of the motion to strike the bill before considering matters contained in the bill or the errors assigned.

The motion to strike the bill of exceptions is based upon grounds that the bill was not served or settled or filed within the time allowed by law. The record discloses that the judgment from which the appeal is prosecuted was entered on the 5th day of April, 1933. No motion for a new trial was made or filed. It appears that immediately after the reading of the verdict counsel for plaintiff asked if they could be allowed sixty days additional to that allowed by law "to get out a bill of exceptions." The court orally stated:

"An order may be made to that effect, granting the plaintiff sixty days additional time in which to file bill of exceptions."

The record does not disclose any written or signed order made by the court. A proposed bill of exceptions was served on respondent by appellant on May 29, 1933. This was returned to appellant by respondent with objections and proposed amendments on June 13, 1933.

If the oral order made by the court was a valid order, the service of the bill upon the adverse party was in time and the adverse party had ten days within which to propose amendments. It is to be noted the court used the word "filed" in the oral order made. For the time being we shall pass the question of the validity of the oral order as it may not be necessary to pass upon that matter in this case. Assuming, however, that the order made on April 5, 1933,...

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