Western & Southern Life Ins. Co. v. Robertson

• Decision Date: 12 June 1934
• Citation: 255 Ky. 13
• Parties: Western & Southern Life Insurance Company v. Robertson.
• Court: United States State Supreme Court — District of Kentucky

255 Ky. 13

Western & Southern Life Insurance Company v. Robertson.

Court of Appeals of Kentucky. Common Pleas Branch, Second Division.

Decided June 12, 1934.

1. Insurance. — Provision in life policy that disability payments would not begin as of date more than 90 days prior to receipt of proofs of disability is valid, and should be upheld unless waived or insurer is estopped from relying upon it by its acts or conduct.

2. Insurance. — Under life policy providing that failure to pay premiums would terminate rights thereunder and that disability payments should not begin as of date more than 90 days prior to receipt of proofs of disability, no recovery could be had where disability of insured arose July 1, 1927, and proof of disability was not furnished to insurer until more than 90 days after insured's death on January 18, 1928, and premium due September 3, 1927, was not paid.

Appeal from Jefferson Circuit Court

WILLIAM MARSHALL BULLITT, BRUCE & BULLITT, and JOHN E. TARRANT for appellant.

WOODWARD, HAMILTON & HOBSON for appellee.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Reversing.

As beneficiary in an insurance policy issued to her husband, Dillard Robertson, by the Western & Southern Life Insurance Company, Mavis Robertson has recovered judgment for $1,000 and the company is appealing.

The policy in controversy was issued on March 3, 1927. At the time it was issued the insured paid the first semiannual premium amounting to $13.68. A semiannual premium for a like amount due September 3, 1927, was never paid. Some time about the first of May, after the policy was issued, insured, who was employed by the Louisville Railway Company, had a severe hemorrhage of the lungs. He either at the time had, or subsequently developed, tuberculosis from which he died on the 18th day of the following January. There is a conflict in evidence as to the extent to which insured was disabled because of his ailment after suffering his first hemorrhage. The evidence of some lay witnesses who were friends and acquaintances of insured indicates that he was unable to and in fact performed very little work after that date. The evidence of physicians who subsequently examined and treated insured gave as their opinion from his condition at the time and from a history of the case that he was, from the date he had the hemorrhage in May, wholly incapacitated from performing labor, or at least that he could not perform labor with any degree of safety to his health and life.

On the other hand, the evidence for the insurance company strongly tends to establish that from May 7 to August 11, inclusive, after the policy was issued, Robertson worked practically every day except one week during which he was sick. Due to the fact that he was on the extra list and did not have a regular run, his hours of service were irregular, but on the whole, he averaged eight hours or more per day as shown by the records of the company.

The contract of insurance issued to Robertson was a $1,000 life policy to which was attached a supplementary contract which provided for certain benefits in the event of total disability resulting from disease sustained or contracted after the date of the policy. The pertinent portion of the supplementary contract reads:

"If, while the policy to which this supplementary contract is attached is in full force and effect, the insured shall, subsequent to the date hereof, viz. * * * March 3, 1927, * * * and prior to attaining the age of sixty [60] years [nearest birthday], become wholly disabled as a result of bodily injury or disease which originates or is sustained or contracted after the date hereof, and be so disabled continuously for not less than ninety [90] days prior to the receipt by the Company of proofs thereof as hereinafter defined and required; and if, solely by reason of such bodily injury or disease, the insured is prevented from performing any work or following any occupation or engaging in any business for wages, remuneration or profit the Company will, upon receipt at the Home Office of due and satisfactory proofs of such disability made in the lifetime of the insured on forms prescribed by the Company grant the following benefits:

"First; Waiver of Premiums — Subject to the aforesaid and hereinafter mentioned conditions, and commencing with the anniversary of said policy next succeeding the receipt of such due and satisfactory proofs, the Company will waive the payment of premiums on said policy and on this supplementary contract during the continuance of such disability.

"Second: Payment of Monthly Income — Subject to the aforesaid and hereinafter mentioned conditions, the Company, upon receipt of...