Wright v. Atl. Life Ins. Co.

• Decision Date: 07 June 1932
• Docket Number: (No. 7208)
• Citation: 112 W.Va. 420
• Parties: Canara C. Wright v. Atlantic Life Insurance Company
• Court: West Virginia Supreme Court

112 W.Va. 420

Canara C. Wright

v.Atlantic Life Insurance Company

(No. 7208)

Supreme Court of Appeals of West Virginia.

Submitted May 25, 1932.

Decided June 7, 1932.

New Trial

A new trial should not be awarded upon the theory, not supported by the record, that the case has not been fully developed.

Error to Circuit Court, Mercer County.

Action by Canara C. Wright against the Atlantic Life Insurance Company. A verdict was directed in favor of the defendant. To review a judgment setting aside the verdict on plaintiff's motion, the defendant brings error.

Reversed; entered.

Charles D. Mahood, Hartley Sanders, Alexander W. Parker and A. B. Scott, for plaintiff in error.

Richardson & Kemper, for defendant in error.

Litz, Judge:

This action was brought by the beneficiary in a life insurance policy issued to Samuel G. Wright.

The time of payment of the last premium had expired before his death. The policy provides: "Subject to all the other provisions of this agreement, if due proofs that the Insured is totally and permanently disabled as hereafter defined shall have been actually received at the Home Office, the Company shall: Waive payment of any premium falling due after the approval of said proofs, and during the continuance of such disability; * * * The time when due proofs are received at the Home Office is of the essence to determine when the benefit hereunder shall commence, and the benefit shall not be given any retroactive operation." Although the insured was in fact totally and permanently disabled (within the meaning of this provision), continuously from a date prior to the expiration of the period within which the premium was required to be paid to the time of his death, no notice of the fact was ever given to the insurer. Defendant filed its plea under chapter 56, article 4, Code 1931, denying liability on the ground that the policy had lapsed for non-payment of the premium. To this plea, plaintiff replied specially, relying upon the provision waiving payment of premiums in event of total and permanent disability of the insured, and averring that he was totally and permanently disabled from a date prior to the expiration of the period within which the premium was required to be paid until the time of his death, and that he failed to report the fact promptly to the insurer solely because he did not comprehended his true condition. A demurrer to this replication was sustained. Upon the trial, a verdict was directed in favor of defendant, The finding having been set aside on her motion, plaintiff was permitted to file an amended replication to the plea, averring that from a date prior to the expiration of the time within which the insured was required to pay the premium to the time of his death, he was continuously physically and mentally incapable of comprehending his physical condition, "for which reason the said decedent did not and could not furnish to the said defendant formal notice of his said disability."

Counsel for plaintiff contend that the trial court improperly sustained the demurrer to plaintiff's original replication, and, for that reason, was justified in setting aside the verdict; citing: Swann v. Atlantic Life Ins. Co., (Va.) 159 S. E. 192; I.'ran v. Metropolitan Life Ins. Co., 138 S. C. 253; Rhyne v. Jefferson Standard Life Ins. Co., 196 N. C. 717; Minnesota Mutual Life Ins. Co. v. Marshall, 29 F. (2d) 977. The Swann, Levan and Rhyne eases, respectively, dealt with a disability which rendered the insured "incapable of furnishing proofs". The replication in question does not allege, nor does evidence tend to prove, that Wright was incapable mentally or physically of furnishing proofs, but, on the contrary, shows his ability and inclination to have done so had he appreciated his physical condition. The provisions waiving payment of premiums in the Marshall case were so ambiguous as to admit of the holding that "the waiver took effect at the time of the disability and did not depend upon the time when proof thereof was furnished." Those provisions are differentiated by the Supreme Court (in Bergholm v. Peoria Life Ins. Co., 52 Supreme Court Reporter 230), from the waiver in the policy involved in that case, which follows:

"Upon receipt by the Company of satisfactory proof that the Insured is totally and permanently...