Taylor v. Continental Assur. Co.

• Citation: 104 Ohio App. 78,144 N.E.2d 213
• Parties: , 75 Ohio Law Abs. 492, 4 O.O.2d 162 Lella S. TAYLOR, Plaintiff-Appellee, v. The CONTINENTAL ASSURANCE COMPANY, Defendant-Appellant.
• Decision Date: 08 October 1956
• Court: United States Court of Appeals (Ohio)

Page 78

104 Ohio App. 78

144 N.E.2d 213, 75 Ohio Law Abs. 492, 4 O.O.2d 162

Lella S. TAYLOR, Plaintiff-Appellee, v. The CONTINENTAL ASSURANCE COMPANY, Defendant-Appellant.

Court of Appeals of Ohio, Franklin County.

Oct. 8, 1956.

George T. Tarbutton, Columbus, for plaintiff-appellee.

Vorys, Sater, Seymour & Pease, Columbus, James O. Seymour and Charles D. Minor, Columbus, of counsel for defendant-appellant.

HORNBECK, Judge.

This is an appeal on questions of law from a judgment in favor of the plaintiff for $1,000, interest and costs on the first cause of action of her petition.

The cause was tried to a judge without the intervention of jury. After the submission of the case the trial judge returned a written opinion in which he held that the plaintiff should have judgment for $1,000 on the first cause of action and $1,000 on the second cause of action of her petition. Thereafter, the court notified counsel that the judgment entry should be for the plaintiff on the first cause of action, only, and it was prepared accordingly with a finding for the defendant on the second cause of action. (Emphasis ours.)

Defendant appeals and assigns four errors;

(1) The court erred in rendering judgment in favor of plaintiff in the amount of $1,000 on plaintiff's first cause of action.

(2) The court erred in overruling defendant's motion for judgment.

(3) The Court erred in overruling defendant's application and motion for a new trial.

(4) The judgment is contrary to law.

All assignments raise substantially the same question.

The plaintiff is the widow of Charles W. Taylor, deceased, who in his lifetime was an employee of the Ft. Hayes Hotel Company, Columbus, Ohio, and had been in the employ of said company for more than five years prior to his decease. The Ft. Hayes Hotel Company since April 9, 1937, was the holder of a policy of group insurance issued by defendant company wherein the employees of the company were protected and under a certificate issued to plaintiff's decedent she was designated a beneficiary.

The record is made up of a stipulation of the parties together with the transcription of the testimony of plaintiff. From the stipulation it appears that the policy after notices from the employer had been cancelled of date December 9, 1950. The stipulation makes no reference to days of grace and we therefore must assume that all rights under the days of grace provision in the policy were terminated as of December 9, 1950. On or about October 13, 1950, while plaintiff's decedent was employed by Ft. Hayes Hotel Company and was under 60 years of age he became permanently and totally disabled as a result of bodily injury suffered during the course of and arising out of his employment and was thereafter permanently, continuously and wholly prevented thereby for life from engaging in any occupation and performing any work for wage or profit. This is stipulation No. 7 and conforms in language to the requirements of the policy as to benefits to an insured employee for permanent disability subject only to the necessity of notice as provided in the policy.

Stipulation No. 8 is to the effect that plaintiff's decedent died January 31, 1951, as a result of the bodily injury and/or disease set forth in Stipulation No. 7. This fact is sufficient to establish the right of plaintiff to death benefit under the policy if effective on the date of his death and if requisite notice to the company is established according to the terms of the contract of insurance.

The stipulation sets forth no fact respecting notice to the defendant company of the permanent and total disability of plaintiff's decedent or of his death, but the testimony of plaintiff is directed to the issue of notice to the company of the disability of decedent.

Plaintiff pleads compliance with the requirements of the policy as to notice as to permanent and total disability and of decedent's death. Defendant denies specifically receipt of notice of Taylor's permanent disability and by general denial notice as to his death and that the policy was in effect as of the date of the death of plaintiff's decedent.

The testimony of the plaintiff respecting the notice that she claims was sent to defendant company relates entirely to decedent's permanent and total disability. It could not relate to his death because the notice to which she refers was given prior to decedent's death and there is no proof whatever of any notice to the company of the death of plaintiff's decedent.

The judgment on review is on the first cause of action which is predicated entirely upon the right of plaintiff to recover as beneficiary in the policy by reason of the death of her husband. The court held in opinion and entry against plaintiff on the second cause of action which sought to recover on the basis of the permanent and total disability provision of the policy.

Clearly, plaintiff's right to recover under the second cause of action is much stronger than under the first.

As we understand, it is the contention of plaintiff first, that under the provision in the policy as to insured's death, certain rights vested in him upon his suffering total disability which were not abrogated by his death, and second, that under the terms of the...