Rollefson v. Brotherhood

• Decision Date: 19 December 1942
• Docket Number: 7034
• Citation: 132 P.2d 758,64 Idaho 331
• Parties: ANDREW I. ROLLEFSON, Respondent, v. LUTHERAN BROTHERHOOD, Appellant
• Court: Idaho Supreme Court

132 P.2d 758

64 Idaho 331

ANDREW I. ROLLEFSON, Respondent, v. LUTHERAN BROTHERHOOD, Appellant

No. 7034

Supreme Court of Idaho

December 19, 1942

Rehearing denied January 25, 1943.

INSURANCE-CONSTRUCTION OF POLICY-DISABILITY CLAUSE-CONTINUANCE OF DISABILITY-BURDEN OF PROOF-APPEAL AND ERROR-THEORY OF CASE.

1. In action on life policy for total and permanent disability benefits, where defendant gave trial court to understand that there was no controversy concerning "any condition precedent to paying disability benefits," and case was tried upon such theory, defendant could not assert on appeal that it was incumbent upon plaintiff to plead and thereafter prove that he was totally and permanently disabled by bodily injury or disease occurring and originating while policy was in force as required by the policy.

2. A party will be held to the theory upon which cause was tried in lower court, and a different and inconsistent theory cannot be advanced for first time on appeal.

3. It is common knowledge that insurance contracts are not entered into as other contracts generally are.

4. The rule of "strictissimi juris" is applied to insurance contracts, and they are given a liberal construction in favor of insured to accomplish the purpose for which the insurance was taken out and the premium paid.

5. Contracts of insurance should be considered in view of their general objects and the conditions prescribed by the insurers, rather than on the basis of strict technical interpretation.

6. Under life policy containing provisions for total and permanent disability benefits, which provided that insured who was granted disability benefits could at any time, not oftener than once a year, be required to furnish due proof of continuance of such disability, burden was not upon insured of proving continuance of disability.

Appeal from the District Court of the Second Judicial District of the State of Idaho, in and for Latah County, Honorable A. L Morgan, District Judge.

Action by Andrew I. Rollefson against the Lutheran Brotherhood, a Minnesota corporation, for benefits under a life and total and permanent disability insurance policy. From a judgment for plaintiff, defendant appeals. Affirmed.

Judgment affirmed, with costs to respondent.

J. F Martin for appellant.

The burden of proof in this case was upon the respondent; and under that burden he was required to prove that he had become totally disabled by bodily injury or disease occurring and originating while this agreement was in force, so that he is and will be permanently and totally unable to perform any work or engage in any occupation whatever for remuneration or profit, and that such disability has existed for not less than three months consecutively from receipt of such proof. In the absence of such proof, the judgment is without support in the evidence and must be reversed. (U. S. F. & G. v. McCarthy, 70 A. L. R. 1447, 33 F.2d 7; Murphy v. Mutual Life Ins. Co. of N.Y., 62 Idaho 362, 112 P.2d 993; Mid-Continent L. Ins. Co. v. Walker, 128 Okla. 75, 260 P. 1110.)

Laurence E. Huff for respondent.

Contracts of insurance are to be construed in view of their general objects and strict, technical interpretation is to be avoided. Where language may be given two meanings, one of which permits recovery and the other does not, it is to be given the construction most favorable to the insured. (Sweaney & Smith Co. v. St. Paul, etc. Ins. Co., 35 Idaho 303, 206 P. 178; Sant v. Continental Life Ins. Co., 49 Idaho 691, 291 P. 1072; Maryland Casualty Co. v. Boise Street Car Co., 52 Idaho 133, 11 P.2d 1090; Watkins v. Federal Life Ins. Co., 29 P.2d 1007, 54 Idaho 174.)

The appellant after accepting original proofs of total and permanent disability, and making payments thereon for seven years, could terminate its liability to the respondent under the policy only as authorized by the policy, and the burden of proof of termination of disability is on the appellent. (Wold v. State Mutual Life Assurance Co. of Worcester, Mass., 270 N.W. 150; Hess v. Equitable Life Assurance Society of the United States, 83 Penn. S.Ct. Reports 146 (1924).)

HOLDEN, J. Givens, C. J. and Ailshie, JJ. and Featherstone, D. J., concur, BUDGE, J. (Concurring in the conclusion).

OPINION

HOLDEN, J.

December 11, 1925, appellant, Lutheran Brotherhood, a Minnesota corporation, issued to respondent its certificate of life and total and permanent disability insurance, the pertinent provisions of which follow:

"TOTAL AND PERMANENT DISABILITY BENEFIT

"The LUTHERAN BROTHERHOOD, upon receipt of due proof that the insured, prior to the maturity of this certificate, and before attaining the age of sixty years, has become wholly disabled by bodily injury or disease occurring and originating while this agreement is in force, so that he is and will be permanently and totally unable to perform any work or engage in any occupation whatever for remuneration or profit, and that such disability has existed for not less than three consecutive months from receipt of such proof:

1. Will waive the regular payments thereafter coming due under said certificate during such disability; and

2. Will pay the insured, or other person designated by or in behalf of the insured, an annuity in the sum of fifty dollars per month, from receipt of such proof, during the lifetime and continued disability of the insured."

* * * *

"Altho proof of such disability has been accepted as satisfactory, the insured may at any time, not oftener than once a year, be required to furnish due proof of the continuance of such disability, and no such annuity will be paid or payment waived for any time during which permanent and total disability is not established as provided herein."

October 6, 1932, respondent suffered a cerebral hemorrhage. January 13, 1933, he submitted proof in support of a claim for permanent and total disability. Appellant paid respondent disability benefits for about seven years, to-wit, from April 28, 1933, to and including February 6, 1940. April 11, 1941, appellant having refused to pay any further disability benefits or to waive further payment of premiums, respondent commenced this action against appellant in the District Court for Latah County, Idaho, alleging as follows: the corporate existence of appellant; that he resided in Latah County; that December 11, 1925, appellant made, executed and delivered to respondent its certificate of life and total and permanent disability insurance in writing, and attached a copy of the certificate to his complaint; that said "life insurance certificate is in the amount of $ 5,000.00 and the premium for said life insurance certificate and total and permanent disability benefit is $ 41.80 quarterly"; that the "premiums for said certificate of life insurance and total and permanent disability were paid by plaintiff in full up to January 11, 1933, and the premiums thereon were waived by defendant in accordance with the provisions of said total and permanent disability benefit from January 11, 1933 until March 11, 1940"; that "premiums were paid under protest by the plaintiff quarterly in the amount of $ 41.80 on March 11, 1940, June 11, 1940, September 11, 1940, December 11, 1940, and March 11, 1941 in the total amount of $ 209.00"; "that on October 6, 1932, plaintiff suffered disability as follows, to-wit: A cerebral hemorrhage causing paralysis of right side of body, accompanied by general arterosclerosis with hypertension"; that January 13, 1933, plaintiff submitted proof of total and permanent disability to defendant in accordance with the terms and conditions of said permanent and total disability benefit; and again on April 28, 1933, plaintiff submitted additional proof to defendant of such total and permanent disability, and on August 9, 1933, defendant allowed plaintiff's claim for permanent and total disability, effective as of January 6, 1933; that defendant paid plaintiff a monthly disability annuity in the amount specified in said total and permanent disability benefit from January 6, 1933 to and including January 6, 1940; "that the payment on January 6, 1940 paid the disability annuity to February 6, 1940"; "that the plaintiff has furnished to the defendant proof of the continuance of his total and permanent disability in accordance with paragraph 8 of said total and permanent disability benefit at all times required by the defendant"; "that plaintiff furnished to the defendant his regular annual proof of the continuance of total and permanent disability at the request of defendant on August 2, 1939 and defendant thereafter continued the total and permanent disability annuity payments to the plaintiff until February 6, 1940 and the defendant has not since that time required the plaintiff to furnish any further proof of the continuance of plaintiff's total and permanent disability."

May 2, 1941, appellant interposed a general demurrer to the complaint, but the record fails to show that the trial court ever passed on the demurrer. June 23, 1941, appellant filed an answer to the complaint in which it admitted its corporate existence; that it had refused to pay respondent any further total and permanent disability annuity benefits or to waive any further payment of premiums; that December 11, 1925, it made, executed and delivered to respondent its certificate of life and permanent and total disability insurance; that October 6, 1932, plaintiff "suffered a cerebral hemorrhage and this defendant paid disability benefits to the plaintiff from April 26, 1933, to and including February 26, 1940"; and denied "each and every allegation, statement and fact contained in plaintiff's complaint except" as so admitted.

The case was tried by the court, sitting without a jury commencing ...