Volunteer State Life Ins. Co. v. Davis

• Decision Date: 20 April 1943
• Docket Number: 3 Div. 848.
• Citation: 31 Ala.App. 167,14 So.2d 162
• Parties: VOLUNTEER STATE LIFE INS. CO. v. DAVIS.
• Court: Alabama Court of Appeals

14 So.2d 162

31 Ala.App. 167

VOLUNTEER STATE LIFE INS. CO. v. DAVIS.

3 Div. 848.

Alabama Court of Appeals

April 20, 1943

Rehearing Denied May 11, 1943.

Appeal from Circuit Court, Montgomery County; Eugene W. Carter, Judge.

Certiorari denied by Supreme Court in Volunteer State Life Ins. Co. v. Davis, 14 So.2d 168.

The complaint is as follows:

Count 1.

"The plaintiff claims of the defendant the sum of two hundred seventy dollars ($270.00) due from the defendant under policy of insurance issued to the plaintiff by the defendant on September 2, 1925; and plaintiff avers that in said policy the defendant agreed that if, after one full annual premium had been paid thereon, while this policy was in force the company should receive at its home office proof satisfying to the company's medical director that the insured had become wholly disabled by bodily injury or disease prior to attaining sixty years of age and that the insured is and thereby will be permanently and continuously prevented from engaging in any labor or services whatsoever for remuneration or profit, the defendant would pay to the plaintiff the sum of sixty-seven and 50/100 dollars ($67.50) per month and would continue such monthly disability income payments during the continuance of such disability prior to the maturity of said policy, and plaintiff avers that heretofore on, to-wit the 15th day of February, 1939, the plaintiff became wholly disabled by bodily injury or disease prior to attaining sixty years of age and while said policy was in force, which disability has continued up to the date of filing this suit and plaintiff further avers that he furnished to said company at its home office proof of such disability and that said company did accept the same and did pay the plaintiff monthly payments provided in said policy up to the month of August 1941, but has failed and refused to pay said monthly disability payments since said date; all to plaintiff's damage as aforesaid, hence this suit."

Count 2.

"Plaintiff claims of the defendant the further sum of two hundred sixty-one and 95/100 dollars ($261.95), and plaintiff avers that on September 2, 1925, defendant issued to plaintiff its policy of insurance which provided that if after one full annual premium had been paid thereon, while said policy was in force, the company should receive at its home office proof satisfying to the company's medical director that the insured had become wholly disabled by bodily injury or disease prior to attaining sixty years of age and that the insured is and will be thereby, permanently and continuously prevented from engaging in any labor or services whatsoever for remuneration or profit during the continuance of such disability, the defendant would waive payment of each premium as it became due thereafter; and plaintiff avers that heretofore, to-wit, on the 15th day of February, 1939, defendant became wholly disabled by bodily injury or disease, which disability has continued up to the date of filing this suit; that due proof thereof was made to the defendant as provided by said policy, and that the defendant did waive premiums on said policy due on September 2, 1940; and plaintiff further avers that defendant breached its contract in this, that it failed or refused to waive the payment of premium due on September 2, 1941; that plaintiff to prevent a forfeiture of his rights under said policy paid said premium to the defendant and that the action of said defendant in demanding payment of same while plaintiff was wholly disabled was a breach of said policy as above set forth, all to his damage as aforesaid, hence this suit."

To one count of the complaint defendant interposed these pleas:

Plea 4.

"The policy sued on provides that 'should the Company accept, under any of the foregoing disability provisions, proof of disability, it may, nevertheless, at any time thereafter, and from time to time, but not oftener than once a year, demand of the insured proof satisfying to its Medical Director of the continuance of such disability, and upon failure of the insured to furnish such proof, or, if it appears that the insured has become able to engage in any labor or service whatsoever for remuneration or profit, no further premiums shall be waived and no further disability income payments shall be made by the Company'; that shortly prior to September 2, 1941, defendant demanded of the plaintiff proof satisfying to its Medical Director of the continuance of the permanent and continuous disability which he claims prevented him from engaging in any labor or service whatsoever for remuneration and profit and the plaintiff failed to furnish such proof and under the terms of said policy no further premiums were waived."

Plea 5, after setting forth the policy provision reproduced in plea 4 above, avers: "That shortly before September 2, 1941, the defendant demanded of the plaintiff proof satisfying to its Medical Director of the continuance of the permanent and continuous disability which he claims prevented him from engaging in any labor or service whatsoever for remuneration or profit and the proof which the plaintiff furnished the defendant was not satisfying to its Medical Director and, therefore, no further premiums were waived."

Pleas identically numbered and in substantially the same language were addressed to the other count,-said pleas concluding "no further disability income payments" were due or payable by the company, instead of "no further premiums were waived."

Plaintiff's demurrer to said pleas contained these grounds:

1. Said plea neither denies nor confesses and avoids the allegations of the complaint.

2. Said plea does not deny that plaintiff furnished to defendant proof of the continuance of his disability.

3. For aught that appears from the allegations of said plea, the plaintiff did furnish to defendant reasonable proof of the facts entitling him to disability payments.

Ball & Ball, of Montgomery, for appellant.

Walter J. Knabe and Jack Crenshaw, both of Montgomery, for appellee.

BRICKEN Presiding Judge.

The complaint, pleas 4 and 5, and the demurrers to these two pleas, appear in the report of the case.

In Sovereign Camp, W. O. W., v. Barton, 237 Ala. 120, 186 So. 126, 129, the Supreme Court, referring to proofs of disability, said: "Satisfactory proofs in this connection means proofs which should be deemed satisfactory."

To like effect is Couch on Insurance, Sections 1516, 1541 and 1688.

As we view the authorities, the lower court correctly sustained the demurrers to pleas 4 and 5, for notwithstanding the averments thereof, the proofs submitted may have been such as "should be deemed satisfactory."

Appellee introduced in evidence proof of loss filed and the insurance policy involved. This policy contained among other provisions the following:

"If, after one full annual premium has been paid hereon, while this policy is in force the Company shall receive at its Home Office proof satisfying to the Company's Medical Director that the insured has become wholly disabled by bodily injury or disease prior to attaining 60 years of age and that the insured is, and will be thereby, permanently and continuously prevented from engaging in any labor or service whatsoever for remuneration or profit, during the continuance of such disability the Company will waive payment of each premium, or instalment thereof, hereon, as it becomes due thereafter, beginning at the next succeeding anniversary date of this policy, provided this policy is maintained in force to such anniversary date; provided, further, however, that such proof must be furnished the Company at least sixty days before the due date of any premium to be so waived.

"Should the Company accept, under any of the foregoing disability provisions, proof of disability, it may, nevertheless, at any time thereafter, and from time to time, but not oftener than once a year, demand of the insured proof satisfying to its Medical Director of the continuance of such disability, and upon failure of the insured to furnish such proof, or, if it appears that the insured has become able to engage in any labor or service whatsoever for remuneration or profit, no further premiums shall be waived and no further disability income payments shall be made by the Company."

The record shows, "Defendant admitted that in February 1939 plaintiff was injured by an automobile accident and was totally disabled to perform duties at that time and that proof of the disability was made to defendant and that it paid him up to August 1941."

It appears from the record that appellee, who was 58 years of age, was injured in an automobile accident in February of 1939, at which time he was a traveling salesman, with no other occupation and no training in or for any other business or occupation, with a very limited education which did not extend beyond the Blueback Speller. He had no education in clerical or bookkeeping work and his injuries totally disabled him from engaging in his occupation as a salesman. His right leg was broken in five places and the upper portion lapped over. That is what hurt him so bad. His hand was broken. A piece of iron went through his hand, according to doctor, cut the nerve in two. This caused pain all the time. Walking hurt him. He could sit comfortably only when his leg was raised as high as the desk, and further that it was painful to stand or work, and this pain was increased in bad weather. Other injuries were also testified to more in detail than this summary thereof.

In 1940 the appellee had a home built, but he personally had little to do therewith. A foreman built the house and occasionally the appellee was taken by his wife to that point and appellee would lie upon a cot...