Viles v. Prudential Ins. Co. of America

• Decision Date: 15 January 1940
• Docket Number: No. 1918.,1918.
• Citation: 107 F.2d 696
• Parties: VILES v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: U.S. Court of Appeals — Tenth Circuit

107 F.2d 696 (1939)

VILES v. PRUDENTIAL INS. CO. OF AMERICA.

No. 1918.

Circuit Court of Appeals, Tenth Circuit.

November 8, 1939.

Rehearing Denied November 22, 1939.

Writ of Certiorari Denied January 15, 1940.

Edmond L. Viles, pro se.

Horace Phelps, of Denver, Colo. (James D. Benedict and Horace F. Phelps, both of Denver, Colo., on the brief), for appellee.

Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.

Writ of Certiorari Denied January 15, 1940. See 308 U.S. ___, 60 S.Ct. 387, 84 L.Ed. ___.

PHILLIPS, Circuit Judge.

On June 10, 1927, the Prudential Insurance Company¹ issued to Edmond L. Viles its policy of life insurance for $10,000. The policy also insured Viles against total and permanent disability. Viles paid three semiannual premiums which, with the grace period, kept the policy in force until January 10, 1929.

On November 25, 1936, Viles filed a suit in the district court of Jefferson County, Colorado, for specific performance of that portion of the policy relating to disability benefits. The suit was removed to the United States District Court for the District of Colorado. On an appeal from an order sustaining the Insurance Company's demurrer to the complaint and dismissing the suit, the cause was reversed and remanded with instructions to reinstate the complaint, overrule the demurrer, and grant Viles leave to file an amended complaint wherein he might plead, in addition to other essential allegations, the facts with reference to proof of disability, the time of making same, and the reason for the delay. See Viles v. Prudential Insurance Company, 10 Cir., 96 F.2d 3.

Thereafter, Viles filed an amended complaint wherein he alleged that during the month of October, 1928, he became totally and permanently disabled because of the loss of sight in both eyes; that during the grace period he called on the Insurance Company's general agent at Denver, Colorado, explained his disability and requested blank forms for the purpose of furnishing written proof of such disability; that the general agent advised him the Insurance Company would not consider a claim for disability benefits until he had become totally blind or otherwise helpless; that he relied upon the statement of the general agent and did not discover he had been misled until March, 1935; that after such discovery he again called upon the Insurance Company's general agent and applied for disability benefits and was given blank forms; that such forms were executed by Viles and his physician and delivered to the general agent on April 5, 1935; that thereafter he was advised by the Insurance Company it had investigated his claim and found his disability, if any, did not occur while the policy was in force.

The Insurance Company, in its answer, alleged that the policy lapsed for nonpayment of premiums on January 10, 1929, and that Viles did not become totally and permanently disabled prior thereto. It denied that Viles called on its general agent at Denver during the grace period for the purpose of making proof of disability. It admitted that on March 25, 1935, Viles called on its general agent and on April 5, 1935, delivered to such agent forms executed by Viles and his physician in which total and permanent disability was claimed. It also pleaded unreasonable delay in making proof of claim, laches, and the statute of limitations.

The trial court specially found that Viles did not prior to January 10, 1929, nor at any time subsequent to June 10, 1927, nor at any time while the policy was in force, become totally and permanently disabled within the meaning and provisions of the policy; that the policy lapsed on January 10, 1929, and subsequent thereto Viles during the years 1929, 1930, and 1931 was able to and did follow gainful occupations for which he received substantial compensation in money; that no claim, notice, or proof of disability was furnished to the Insurance Company until on or about April 5, 1935; that no conversation occurred between Viles and the Insurance Company's general agent in December, 1928, or January, 1929; and that the delay in making and furnishing proof of the alleged disability was unreasonable under the facts and circumstances and did not comply with the provisions of the policy requiring the filing of proof of disability within a reasonable time.

A judgment was entered dismissing the suit. The trial court overruled a motion for a new trial, based on alleged newly discovered evidence, on the ground that the alleged newly discovered evidence was cumulative.

Viles has appealed.

Doctor Donald O'Rourke, an expert witness for Viles, testified that he made an examination of Viles' eyes on April 16, 1929, and found his vision in the right eye was one-tenth for distance and in the left eye, perception of light; that the condition he found was in the back of his eyes and was a congenital defect which had existed since birth; that he examined Viles on April 5, 1935, for the purpose of executing the proof of disability filed with the Insurance Company, and a few months prior to the trial in connection with an application for a blind benefit from the state of Colorado, and his findings were the same as those in 1929. While being examined by Viles on direct examination he stated:

"I am not familiar with the rulings of the court, but it strikes me here this morning that with vision of one tenth as recorded, it would not be possible for you to stand up and read as I have seen you do here."

Viles stated that he was not reading, but was just looking. On cross-examination, Doctor O'Rourke stated that the defect he found in Viles' eyes was congenital, was not progressive, and, in his opinion, had never changed. He further stated that in making an examination of eyes for the purpose of determining defects in vision, in order to obtain accurate results cooperation of the patient is necessary and the doctor must rely very largely upon what the patient states he can see.

Viles testified that prior to the fall of 1928, he represented several large concerns and sold hosiery, lingerie, and other dry goods to retail merchants and department stores and earned from $5,000 to $7,200 a year; that his vision had always been impaired; that glasses largely corrected the defect until the fall of 1928, when his vision became greatly impaired; that he called at the Denver office of the Insurance Company and talked to its general agent; that the general agent advised him he would not be entitled to disability benefits until he was totally blind or otherwise helpless; that he believed the agent knew the law and the facts, and forgot all about the policy until early in 1935, when he learned that a man, who had better vision than he, was drawing disability benefits from a life insurance company; that he again called on the general agent of the Insurance Company and insisted on...