Rickey v. New York Life Ins. Co.

• Decision Date: 08 May 1934
• Docket Number: No. 22787.,22787.
• Parties: SAMUEL H. RICKEY, RESPONDENT, v. NEW YORK LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

71 S.W.2d 88

SAMUEL H. RICKEY, RESPONDENT, v. NEW YORK LIFE INSURANCE COMPANY, A CORPORATION, APPELLANT.

No. 22787.

St. Louis Court of Appeals. Missouri.

Opinion filed May 8, 1934.

Appeal from Circuit Court of Shelby County. — Hon. Vernon L. Drain, Judge.

AFFIRMED.

Jayne & Jayne and L.B. Henderson for appellant.

(1) Plaintiff's action being founded on a contract, his right to recovery and the extent thereof is limited to the terms of the contract Renn v. Supreme Lodge, 83 Mo. App. 442; Mitchell Furniture Co. v. Insurance Co., 17 Mo. App. 627; St. Louis v. Ry., 228 Mo. 712; Good v. Erker, 170 Mo. App. 681; Curtin Clark Hdw. Co. v. Churchill, 126 Mo. App. 462; 13 C.J. (Contracts) 524. (2) Plaintiff by his petition plead the provisions of the policy that the benefits were due only after the insured "has become wholly disabled ... so that he is ... permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit ..." Plaintiff's own evidence not only failed to show that he had sustained such a disability but on the contrary it showed that he had not sustained such a disability. Clearly the demurrer to the evidence should have been sustained. 1 C.J. (Accident Insurance) 465, par. 167.

Harry J. Libby and Dan R. Hughes for respondent.

(1) Where the petition charges a loss in the language of the policy, it is sufficient against general demurrer. Horton v. Travelers Ins. Co., 45 Cal. App. 462, 187 Pac. 1070; McElfresh v. Odd Fellows, etc., 21 Ind. App. 557, 52 N.E. 819; Jamison v. Continental Cas. Co., 104 Mo. App. 306. (2) In ruling on a demurrer to the evidence, the reviewing court will accept the plaintiff's evidence as true, and every fair and reasonable inference, and every reasonable presumption and intendment will be indulged to sustain and support the verdict. Kamer v. M.K.T.R. Co. (Mo.), 32 S.W. bot. page 1081; Kemp v. Doe Runn Lead Co., 57 S.W. (2d) 758; Minea v. St. Louis Co-operage Co., 175 Mo. App., bot. page 104; Daniels v. Aetna, 36 S.W. (2d) 688, 225 Mo. App. 357; Fulbright v. Phoenix, 44 S.W. (2d) 115; Klinkhardt v. Crescent Ins. Co., 47 S.W. (2d) 210; Baries v. St. Louis Ind. Pkg. Co., 46 S.W. (2d) 952; Wolfgram v. Modern Woodmen, 167 Mo. App. 220. (3) There was sufficient, and substantial evidence to require submission of the question of total disability to the jury. Fogelsong v. Modern Brotherhood, 121 Mo. App. 548; Fogelsong v. Modern Brotherhood, 129 Mo. App. 655; Wall v. Continental Casualty Co., 111 Mo. App. 504; James v. United States Casualty Co., 113 Mo. App. 622; Laupheimer v. Mass. Mut. L. Ins. Co., 24 S.W. (2d) 1058; Katz v. Union Central L. Ins. Co., 24 S.W. (2d) 1058; Schwartz v. National Acc. Assn., 267 S.W. 87; McMahon v. Supreme Council, 54 Mo. App. 468; Merchant v. New York Life Ins. Co., 42 Ga. App. 11, 155 S.E. 221; Fagerlie v. New York Life Ins. Co., 129 Ore. 485, 278 Pac. 485; New York Life Ins. Co. v. Best, 157 Miss. 571, 128 So. 565; New York Life Ins. Co. v. McLean, 218 Ala. 401, 118 So. 753; Penn Mut. Life Ins. Co. v. Milton (Ga.), 127 S.E. 140; Monahan v. Supreme Lodge, 88 Minn. 224, 92 N.W. 972; United States Cas. Co. v. Hanlon, 20 Colo. App. 393, 79 Pac. 176; Hohn v. Interstate Cas. Co., 115 Mich. 79, 72 N.W. 1105; Lobdill v. Laboring Mens, etc., 69 Minn. 14; Rathburn v. Globe Ins. Co., 107 Neb. 18, 184 N.W. 903; Davis v. Midland Cas. Co., 190 Ill. App. 338; Grand Lodge v. Orrill, 69 N.E. 68; Brotherhood v. Aday, 97 Ark. 425; Industrial, etc., v. Hawkins, 94 Ark. 417; Young v. Travelers Ins. Co., 80 Me. 244, 13 Atl. 896; Booth v. United States Fidelity & Guaranty Co. (N.J.L.), 130 Atl. 131; Aetna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S.W. (2d) 310; Equitable Life Assur. Soc. v. Serio, 155 Miss. 515, 124 So. 485; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Travelers Ins. Co. v. Turner, 239 Ky. 191, 39 S.W. (2d) 216; Fidelity & Casualty Co. v. Bynum, 221 Ky. 450, 298 S.W. 1080; Henderson v. Continental Cas. Co., 239 Ky. 93, 39 S.W. (2d) 209; Benefit Assn. R.E. v. Secrest, 239 Ky. 400, 39 S.W. (2d) 682; Pacific Mutual Life Ins. Co. v. McCrary, 161 Tenn. 389, 32 S.W. (2d) 1052; Massachusetts Bonding & Ins. Co. v. Worthy, 9 S.W. (2d) 388 (Texas Civ. App.). (4) Where a premium on a life insurance policy is due and the time of payment is extended by the insurer and before the expiration of the time the assured becomes disabled, the disability clause of the policy will be in force, and subsequent payments of the premiums will be waived. Bank v. N.W. National Life Ins. Co. (Tenn.), 26 S.W. (2d) 135, 68 A.L.R. 1380. (5) The provisions of an insurance policy limiting or avoiding responsibility must be construed most strongly against the insurer. Cunningham v. Union Cas. Surety Co., 82 Mo. App. 614; Rosenbach v. Fidelity & Casualty Co., 204 Mo. App. 154, 221 S.W. 386. (6) Where an insurance policy is susceptible of two constructions, that construction should be adopted which is most favorable to the insured, and one that will sustain, if possible, the claim. Laue v. Grand Fraternity, 132 Tenn. 235, 177 S.W. 941. (7) The furnishing of proofs of disability is a condition subsequent and not a condition precedent, in order to establish liability. Pfeiffer v. Mo. State Life Ins. Co., 147 Ark. 784, 297 S.W. 847; McNally v. Phoenix Life Ins. Co., 137 N.Y. 389, 33 N.E. 475; Mo. State Life Ins. Co. v. LeFevre (Tex. Civ. App.), 10 S.W. 267. (8) In the first paragraph of the disability clause of the policy the only facts necessary to exist in order for the payment of premiums to be waived are: First, the insured shall become totally and permanently disabled. Second, the policy shall be in full force and effect. Minn. Mutual Life Ins. Co. v. Marshall, 29 Fed. (2d) 977, 279 U.S. 851; Wendstrom v. Aetna Life Ins. Co., 55 N.D. 647, 215 N.W. 93, 54 A.L.R. 289; Mo. State Life Ins. Co. v. LeFevre (Tex. Civ. App.), 105 S.W. (2d) 267. (9) If the word "permanent" as used in the policy is accepted in the restricted sense urged by the defendant, the modifying clauses following therein are either meaningless or they render the disability clause ambiguous. In that situation the construction to be implied must be the one most favorable to the plaintiff. State ex rel. v. Allen, 267 S.W. 379; Block v. Guaranty Co., 316 Mo. 278, 290 S.W. 429; Stix v. Indemnity Co., 175 Mo. App. 171, 157 S.W. 870; Matthews v. Woodman, 236 Mo. 326, 139 S.W. 151; Baupheimer v. Mass. Mutual Life Ins. Co., 24 S.W. (2d) 1058, l.c. 1062. (10) The failure of plaintiff to ask the benefits of his policy for 1925 and 1926, did not preclude him from claiming after November 27, 1927, when proofs of disability were furnished to the defendant. The penalty for the delay was paid by the plaintiff in his loss of benefits prior to the date of proof, and the defendant company derived the advantage, by retaining the money that was due had proofs been furnished. Sovereign Camp v. Meek (Ark.), 47 S.W. (2d) 567; Hope Spoke Co. v. Maryland Cas. Co., 102 Ark. 1, 143 S.W. 85; Minnesota Mut. L. Ins. Co. v. Marshall, 29 F. (2d) 977; Bergholm v. Peoria L. Ins. Co., 52 Sup. Ct. Rep. 230, 76 L. Ed. ___.

McCULLEN, J.

This suit was brought by respondent, plaintiff below, for a refund of premiums paid and to recover permanent disability benefits under a life insurance policy issued to plaintiff by appellant, defendant below. A trial before the court and a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $708.60. Defendant appeals.

Plaintiff's petition charged that in March, 1920, in consideration of the payment by plaintiff to defendant of a premium of $65.44 annually, defendant executed and delivered to plaintiff its policy of insurance, whereby it insured the life of plaintiff in the sum of $1,000, payable to Emma S. Rickey, plaintiff's wife. The petition averred that $3.72 of the annual premium paid to defendant was an extra annual premium for total and permanent disability benefits under the policy, and that said extra premium was paid until plaintiff became sixty years of age, and thereafter the annual premium on said policy was reduced from $65.44 to $61.72.

The policy, marked exhibit A, was filed with the petition.

It was averred in the petition that the policy contained, among others, the following provisions:

"And the company agrees to pay to the insured one-tenth of the face of this policy per annum, during the lifetime of the insured, if the insured becomes wholly and permanently disabled before age sixty, subject to all the terms and conditions contained in Section 1 hereof."

The clauses of Section 1 of the policy, with which we are concerned on this appeal, were set forth in the petition as follows:

"Section 1. — Total and Permanent Disability Benefits. 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 sixty 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... .

"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, and, in any settlement of the policy, the company will not deduct the premiums so waived... .

"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... ... . . The annual premium for the total and...