Rowan v. New York Life Ins. Co.

• Decision Date: 07 February 1939
• Docket Number: No. 24840.,24840.
• Court: Missouri Court of Appeals
• Parties: ROWAN et al. v. NEW YORK LIFE INS. CO.

124 S.W.2d 577

ROWAN et al. v. NEW YORK LIFE INS. CO.

No. 24840.

St. Louis Court of Appeals. Missouri.

February 7, 1939.

Rehearing Denied February 21, 1939.

Appeal from St. Louis Circuit Court; M. G. Baron, Judge.

"Not to be published in State Reports."

Action by Mrs. Marguerite Rowan and James E. Carroll, executors of the estate of John W. Rowan, deceased, against the New York Life Insurance Company, to recover certain income payments alleged to have been due deceased as disability benefits under two policies of insurance. From a judgment for the plaintiffs, the defendant appeals.

Reversed.

Jones, Hocker, Gladney & Grand and Vincent L. Boisaubin, all of St. Louis (Louis H. Cooke, of New York City, of counsel), for appellant.

Raymond J. Lahey, of St. Louis, for respondents.

BENNICK, Commissioner.

This is an action in two counts which is brought by the executors of the estate of John W. Rowan, deceased, to recover certain income payments alleged to have been due the deceased as disability benefits under two policies of insurance — the one for $10,000, and the other for $25,000 — which had been issued to him by defendant, New York Life Insurance Company.

On the face of each of the policies it was provided that in consideration of the payment by the insured of a definitely stated premium for disability benefits, the company agreed to pay to the insured "one per cent of the face of this policy ($10 per $1,000) each month during the lifetime of the insured and also to waive the payment of premiums, if the insured becomes wholly and permanently disabled before age 65, subject to all the terms and conditions contained in Section 1 hereof", which section (in so far as we are concerned with it on this appeal) was as follows:

"1. Disability Benefits shall be effective upon receipt at the Company's Home Office, before default in the payment of premium, of due proof that the Insured became totally and permanently disabled after he received this Policy and before its anniversary on which the Insured's age at nearest birthday is sixty-five years.

"Disability shall be deemed to be total whenever the Insured becomes wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit, and under this contract disability shall be presumed to be permanent after the Insured has been continuously so disabled for not less than three months and during all of that period prevented from engaging in any occupation for remuneration or profit. * * *

"2. Income Payments. — The Company will pay the Insured * * * a monthly income of one per cent of the face of the Policy during the lifetime of the Insured and the continuance of such disability. The first income payment shall become due on the first day of the calendar month following receipt of proof of total and permanent disability or proof of continuous total disability for three consecutive months, as above, and succeeding payments shall become due on the first day of each calendar month thereafter. Any income payments becoming due before the Company approves the proof of disability shall become payable upon such approval, and subsequent payments will be made as they become due.

"3. Waiver of Premiums. — The Company will waive payment of any premium falling due after approval of such proof of disability and during such disability. Any premium due prior to such approval is payable in accordance with the terms of the Policy, but if due after receipt of said proof will, if paid, be refunded upon approval of such proof."

On March 6, 1933, some one for the insured called at defendant's local St. Louis office and requested and was given blank forms to be filled out for the making of proof of the insured's disability within the coverage of the policies. Such proofs, purporting to show total and permanent disability existing as of June 1, 1932 — a fact not controverted, though not admitted, by defendant — were thereafter received at defendant's home office in New York City on April 21, 1933, and in due course were approved by defendant and income payments begun. Under the terms of the policies the first of such income payments would not have been due from defendant until the first day of the calendar month following the receipt of proof of disability, that is, on May 1, 1933, but in view of the fact that it had actually had notice of the claim on March 6, 1933, defendant elected to waive the strict letter of its contract relating to the time when payments should begin and to pay for the months of March and April as though the verbal notice of the claim had amounted to proof of disability within the spirit of the contract. So it was that income payments were begun by defendant as of March, 1933, and were thereafter continued, as provided by the policies, until November, 1933, when the death of the insured occurred.

The controversy in this case is over the question of whether defendant did not in fact become liable to the insured for income payments from and after June 1, 1932 (the date, according to the evidence, of the inception of his total and permanent disability), rather than from a date following receipt of proof of disability; and upon the theory that defendant's liability under the policies did accrue simultaneously with the inception of the disability insured against, plaintiffs, as the executors of the estate of the insured, seek by this action to recover for the estate the aggregate of the income payments due under such theory for the period from June 1, 1932, as of which date the first existence of disability was shown, to ...