Yarborough v. Atlantic Life Ins. Co., 4017.

• Decision Date: 08 June 1936
• Docket Number: No. 4017.,4017.
• Citation: 84 F.2d 319
• Parties: YARBOROUGH v. ATLANTIC LIFE INS. CO., Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

84 F.2d 319 (1936)

YARBOROUGH v. ATLANTIC LIFE INS. CO., Inc.

No. 4017.

Circuit Court of Appeals, Fourth Circuit.

June 8, 1936.

W. C. Downing and J. O. Tally, both of Fayetteville, N. C. (D. G. Downing, of Fayetteville, N. C., on the brief), for appellant.

Robert H. Dye, of Fayetteville, N. C., and Adolphus Blair Scott, of Richmond, Va. (Dye & Clark, of Fayetteville, N. C., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

The insured under the policy in this case met his death by accident, and the beneficiary claims that she is entitled to the sum of $5,000 specified on the face of the policy, and also to an additional sum of like amount under a double indemnity provision in the contract. The company admits its liability for the face of the policy, but denies the additional liability on the ground that the accidental death of the insured occurred after the premium-paying period while the insured was suffering from total and permanent disability and the double indemnity feature of the policy was not in effect.

The facts are not in dispute. Premiums on the policy were regularly paid until August, 1930, when the insured became totally and permanently disabled. Due proof of disability was furnished to the company and approved by it. Further premium payments were waived under the terms of the policy and monthly disability benefits were paid until October 24, 1933, when the insured died as the result of external, violent, and accidental means. At the trial below, the District Judge directed a verdict for the plaintiff for $4,641.29, the face of the policy, less a policy loan due by the insured, and from the judgment based on this verdict the beneficiary appeals.

Two riders are attached to the policy, one entitled "Total Disability Benefits, Waiver of Premiums and Monthly Income During Disability," and the other "Double Indemnity Benefit, Additional Insurance under Conditions Hereinafter Defined." The beneficiary relies upon the terms of the disability rider which provides that if the insured shall furnish due proof to the company that he has become totally and permanently disabled, the company after having placed an indorsement on the rider shall:

"1. Continue the Contract without requiring the payment of premiums, if any, falling due after the approval of said proof, and during the continuance of such disability, during which period the right of the insured to dividends (payable only in cash), Surrender Values, and all other benefits under this contract shall continue with the same force and effect as if premiums were duly paid by the insured; and in addition thereto,

"2. Pay immediately to the insured, after the approval of said proof, $10 for each $1,000 of the face value of this contract and a like sum on the same day of each month thereafter during the life of the insured and the continuance of such disability.

"No deduction will be made from the amount payable at the death of the insured or from any other value under the contract on account of the waiver of premiums and the payment of...