Shockley v. Travelers Ins. Co.

• Citation: 137 P.2d 117,17 Wn.2d 736
• Decision Date: 07 May 1943
• Docket Number: 28917.
• Parties: SHOCKLEY et al. v. TRAVELERS INS. CO.
• Court: Washington Supreme Court

137 P.2d 117

17 Wn.2d 736

SHOCKLEY et al. v. TRAVELERS INS. CO.

No. 28917.

Supreme Court of Washington

May 7, 1943

Department 1.

Suit by Wade Lee Shockley and wife against the Travelers Insurance Company, to recover permanent, total disability benefits provided for in two insurance policies upon the lief of the named plaintiff. Trial Before the court without a jury resulted in a judgment for plaintiffs, and defendant appeals.

Judgment affirmed.

MALLERY J., dissenting.

Appeal from Superior Court, Yakima County; Robert J. Willis, judge.

Snively & Bounds, of Yakima, for appellant.

Rigg Brown & Halverson, of Yakima, for respondents.

STEINERT Justice.

Plaintiffs husband and wife, brought suit upon two life insurance policies, seeking to recover the benefits provided for therein in case of the permanent, total disability of the insured husband. Upon a trial Before the court without a jury, findings were made, upon which the court entered judgment for the plaintiffs. Defendant appealed.

In December, 1918, the appellant insurance company issued to respondent Wade Lee Shockley, who will hereinafter be referred to as though he were the sole respondent, a life insurance policy in the amount of ten thousand dollars, payable at his death to his wife, Sarah R. Shockley. The policy contained a provision which, so far as is material here, read as follows:

'After one full annual premium shall have been paid upon this contract and Before a default in the payment of any subsequent premium, if the Insured shall furnish the Company with due proof that he has since such payment and Before having attained the age of 60, become wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, the Company [will waive payment of future premiums and will pay the insured, during such disability, an amount equal to $10 for each $1000 of insurance stated therein].'

The policy described the insured as being thirty-five years of age and the application therefor gave his occupation as that of sheep grower.

In November, 1930, appellant issued to respondent a second life policy, in the amount of five thousand dollars, likewise payable at his death to his wife. That policy contained a provision virtually the same in effect, though slightly different in wording, as the one contained in the first policy with reference to permanent total disability of the insured. The second policy described the insured as then being forty-seven years of age, but it did not state his occupation. The evidence, however, establishes that he was at that time a fruit grower.

Sometime in the latter part of 1931, respondent, after obtaining medical attention and diagnosis of his physical condition, made application to the appellant for the payment to him of permanent total disability benefits, under the terms of the two policies. Appellant approved the application on February 25, 1932, and thereafter made regular monthly disability payments to respondent until July 29, 1941. On the last mentioned date, however, appellant notified respondent that certain information which it had obtained, medical and otherwise, indicated that respondent's activities and state of health were inconsistend with the requirements of the total disability provisions contained in the policies, and that it would therefore immediately discontinue such payments. Appellant has paid nothing upon either policy since that time.

Respondent thereupon instituted this action to recover judgment for the amount of unpaid monthly benefits due and to become due, and to obtain a decree adjudging respondent entitled to a waiver of premium payments.

Respondent's complaint is predicated upon the claim that in the fall of 1931 he became wholly disabled by reason of tuberculosis and that his condition has since prevented him, and will permanently, continuously, and wholly prevent him, from engaging in any occupation or employment for wage or profit. Appellant denied the claim generally and by an affirmative defense alleged that whatever may have been respondent's former condition due to tuberculosis as claimed, it had in any event been completely and entirely cured; that respondent is no longer afflicted with, suffering from, or disabled by tuberculosis; that he is capable of doing the ordinary and usual work of a man of his age; that he is able to pursue the calling in which he had been engaged during the years prior to 1931; and that, as a matter of fact, he has for the last several years performed manual labor of a strenuous nature without in any way affecting his health. These affirmative allegations were denied in respondent's reply. The action was tried upon the issue thus presented as to respondent's alleged permanent, total disability, and considerable evidence was produced with respect thereto.

At the conclusion of a lengthy trial, the trial court took the matter under advisement and thereafter rendered a memorandum opinion in which it analyzed the testimony of the various witnesses and from that anaylsis concluded: (1) that respondent had not established by a preponderance of the evidence that his condition is one of 'active' tuberculosis, and that the court should find as a matter of fact that his condition is, rather, one of 'arrested' tuberculosis; but (2) that, nevertheless, respondent is permanently and totally disabled, within the meaning of the provisions of the policies, in that in his present condition he cannot successfully seek, gain, or hold employment as a sheep raiser, fruit grower, or in any other line of endeavor; that were respondent to engage in either of the two activities specifically named above, his physical condition would in all probability become aggravated and the tuberculosis in his system would again become active; and that the same result would in all probability follow if respondent should engage in any other occupation within the range of his normal capabilities.

In consonance with the reasoning and conclusions set forth at length in the memorandum opinion, the trial court made findings of fact, two of which are fundamental so far as this appeal is concerned, and furnish the basis upon which the contentions of the respective parties are advanced.

Finding of fact number 7 reads: 'That thereafter [following the issuance of the second policy] and during the year 1931 in the Fall thereof the plaintiff [respondent] Wade Lee Shockley became wholly disabled from truberculosis, which said condition has since and will permanently and continuously wholly prevent him from engaging in any occupation or employment for wage or profit, and that the plaintiff Wade Lee Shockley has been so wholly disabled since the 1st day of November, 1931.'

Finding of Fact number 12 is as follows: 'That the present condition of Plaintiff [respondent] Wade Schockley is one of arrested tuberculosis.' (Italics ours.)

Under its first assignment of error, appellant contends that the trial court erred in entering judgment contrary to, and inconsistent with, the memorandum opinion and findings of fact. Appellant's argument is that since the trial court expressed the view in its memorandum opinion that respondent had not established his condition as being one of active tuberculosis, but merely one of arrested tuberculosis, and since the court thereafter specifically found, in finding of fact number 12, that respondent's condition is one of 'arrested tuberculosis,' therefore respondent was not, at the time involved in this action, suffering from a tubercular disease.

This argument is the product of appellant's own conception of the meaning of the term 'arrested tuberculosis' and of its interpretation of the testimony given by medical witnesses concerning the definition of that term. In other words, appellant assumes, or else concludes from the evidence, that the word 'arrested,' as applied to tuberculosis, means that the disease has completely healed. Appellant's position in that respect is summed up in the following statement in its brief:

'From the testimony of the experts referred to and quoted in our statement herein and as shown by the record, the condition of the assured Wade Lee Shockley was one of arrested tuberculosis. The definition of 'arrested,' as shown by the experts, means that the same is healed. So, under the record and under the court's memorandum opinion and under the Findings of Fact made by the trial court, the plaintiff [respondent] was not, at the time of giving notice, or at the time of trial, suffering from tuberculosis.'

The testimony of the several expert witnesses, taken in its entirely, however, does not warrant to dogmatic a statement. One of the physicians testifying for respondent defined the term 'arrested,' used in connection with tuberculosis, as meaning 'quiescent for the time being.' Another physician, a specialist, testified that he diagnosed respondent's condition as 'fibroid tuberculosis' which, he stated, always carried with it a possibility, or even probability, of being reactivated by undue exertion or any misfortune. Respondent's personal physician diagnosed the patient's condition as chronic pulmonary tuberculosis of the fibrotic type, and stated that such type of disease is active and progressive at all times, and that 'arrested tuberculosis' did not 'mean the absence of tuberculosis or that it is cured.'

On the other hand, one of appellant's expert medical witnesses a specialist in diseases of the chest, testified that by 'arrested tuberculosis' is meant that there is an absence of symptoms of activity for a period of six months or longer, with the patient 'up and around on considerable exercise, walking...