Shank v. Jefferson Standard Life Ins. Co.
| Decision Date | 12 February 1946 |
| Docket Number | (No. 9739) |
| Citation | 128 W.Va. 435 |
| Court | West Virginia Supreme Court |
| Parties | Herman F. Shank v. Jefferson Standard Life Insurance Company |
Insurance
Under the terms of a life insurance policy providing for the waiver of payment of premiums during total disability of insured, upon receipt by the insurer, at the home office thereof, of due proof of insured's total disability, within the period fixed by the policy, and that:
"To be effective due proof of claim hereunder must be given to the Company at its Home Office (1) during the lifetime of the Insured and (2) during the period of continuous total disability unless it be shown that it was not reasonably possible to give such due proof and that due proof was given as soon as was reasonably possible; but in no such event shall any benefits be allowed for any period of disability that preceded by more than seven months the actual receipt at the Home Office of the Company of due proof of claim hereunder.";
and there is a failure to furnish such due proof, within the period stipulated, and payment of premiums is made voluntarily by the insured while under disability, he cannot, in such circumstances, afterwards recover of the insurer any premium or premiums so paid.
Error to Circuit Court of Cabell County.
Action by Herman F. Shank against the Jefferson Standard Life Insurance Company to recover premiums paid by plaintiff under life policy at the time when payments thereof were allegedly waived under terms of policy. Judgment for plaintiff, and defendant brings error.
Reversed and remanded.
C. W. Strickling, Fitzpatrick, Strickling & Marshall and Smith, Wharton & Jordan, for plaintiff in error.
T. W. Peyton and Peyton & Winters, for defendant in error.
Jefferson Standard Life Insurance Company complains of a judgment entered against it in the Circuit Court of Cabell County on April 13, 1945, nunc pro tunc as of September 15, 1944, for the sum of $1,723.63, in an action at law in which Herman F. Shank was plaintiff, and said insurance company was defendant. The parties will be referred to as they stood in the court below.
The facts are not in dispute and, as stipulated by the parties before the trial court, are as follows: On April 28, 1932, plaintiff purchased from defendant a life insurance policy in the face amount of twenty thousand dollars, in consideration of a premium paid at the time of delivery of the policy, and a like sum to be paid annually on each anniversary date of the policy. A rider, attached to said policy, called for the payment of an additional annual premium in the amount of $25.40, which became a part of the total premium as set forth on the face of the policy. This rider, so far as pertinent to the issue presented herein, is in the words and figures following:
(1) during the lifetime of the Insured and
(2) during the period of continuous total disability unless it be shown that it was not reasonably possible to give such proof and that due proof was given as soon as was reasonably possible; but in no such event shall any benefits be allowed for any period of disability that preceded by more than seven months the actual receipt at the Home Office of the Company of due proof of claim hereunder.
"Any claim hereunder must be made in writing on forms supplied by the Company and must be filed together with the policy for en dorsement at the Home Office of the Company in Greensboro, N. C."
On March 24, 1940, plaintiff became very ill, and his ailment was diagnosed as an acute attack of heart disease, with definite coronary occlusion. He was taken immediately to a hospital, where he remained for six weeks and two days, and was then removed, to his home, where he continuously remained disabled and incapacitated from attending to his business affairs until October 4, 1942, when he sought, for a time, to take charge of his affairs. He suffered a relapse on December 15, 1942. During the period following the initial attack, plaintiff was not able to go to his office or take care of his business or affairs, or to be annoyed therewith. He is still incapacitated to attend to all of his business, and is only able to attend to minor parts thereof, During his illness his business affairs were conducted by his secretary, who, without direction from plaintiff, paid the premiums on said insurance policy which became due on the 28th days of April in 1940 and 1941. In December, 1941, plaintiff, for the first time, became acquainted with the terms of his policy, especially the waiver clause quoted in part above, and a short time thereafter filed with the company, at its home office, proof of his disability, whereupon defendant, presumably at the request of the plaintiff, waived the premium due on April 28, 1942. Along with this proof, plaintiff filed his request for a refund of premiums paid by him in 1940 and 1941, which refund the defendant refused to make, and this action resulted. The amount of the premiums for the two years aforesaid was $1494.40, which, together with interest thereon to the date of judgment, aggregates the sum of $1723.63.
The position of plaintiff is that under the terms of the waiver clause aforesaid, he was entitled to a waiver or release of premiums paid in 1940 and 1941, and, having paid the same, is now entitled to have them refunded, even though, admittedly, he did not notify defendant of his disability within six months after the dates on which said premiums became due. His contention seems to be based on two theories: (1) That, during his illness, he was incapable of looking after his affairs, or furnishing the proof of disability required by the terms of his policy of insurance, and (2) proof of his disability within the terms of the policy was not a condition precedent to a waiver of premium and could be given within a reasonable time after it became possible for him to furnish such proof. The position of the defendant is that under the terms of the policy contract, proof of disability, within six months after the due date of the premiums involved, was a condition precedent to his right to have such premiums waived; and that not having furnished such proof within such time, and having voluntarily made payment of the premiums, plaintiff is not entitled to recover the same.
Attention is called to the terms of the waiver clause. It provides, in effect, that if, while the policy is in force, and before the anniversary of the policy on which insured's age at nearest birthday is sixty years, the company shall, during the lifetime of the insured, and during the period of disability, be furnished with due proof that insured has become totally disabled by bodily injuries or disease, commencing subsequent to the issuance of this policy, and while the same is in force, and that he has been continuously and wholly prevented thereby for six or more consecutive months from engaging in any occupation or employment whatsoever for remuneration or profit, the company will waive the premiums or installments thereof which shall become payable prior to the maturity date of the policy, and during such period of continuous total disability, beginning with the premium or installment thereof the due date of which next succeeds the date of commencement of such disability. Thus far, there is an unconditional promise to waive the payment of premiums upon the happening of the specifically defined event; but there is an important proviso attached to this promise. It is: "provided however, that in no event shall a premium or installment thereof be waived, the due date of which preceded by more than six months the receipt, at the Home Office of the Company, of...
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...Jefferson Standard Life Insurance Co., 128 W.Va. 435, 36 S.E.2d 897; Hayes v. Prudential Insurance Co., 114 W.Va. 323, 171 S.E. 824. In the Shank case the holding this Court was that an insured, who voluntarily paid insurance premiums during the period of his total disability, under a life ......