39 S.W.2d 657 | Ky. Ct. App. | 1931
Affirming.
On August 25, 1925, the Benefit Association of Railway Employees issued and delivered to Isaac Howard an accident and health insurance policy in consideration of the payment by the insured of a premium of $4.40 per month. By the terms of the policy the insurer agreed to pay to the insured $80 per month for the first year "for any illness (except such as is due to venereal disease), which is contracted and begins during the life of this policy and after it has been maintained in continuous force for fifteen days from its date, then for the period of total loss of time, not exceeding twelve consecutive months, during which 'such illness' shall wholly and continuously disable and prevent the insured from performing any and every kind of work or occupation for wages or profit, . . . And immediately following said period of twelve months, and so long thereafter as the insured shall continuously suffer total disability as defined in section (a) of this part, the association will pay one fourth of said monthly illness indemnity." The policy provided that, upon the payment of claim thereunder, any premium then due and unpaid might be deducted therefrom.
On July 4, 1930, the insured brought this action against the insurer, and in his petition alleged that he became totally disabled by illness during the year 1928, and reported his illness to the insurance company according to the provisions of the policy and was paid the stipulated monthly indemnity by it until April, 1930, when the insurance company ceased paying the monthly indemnity and undertook to cancel the policy. He further alleged that he was 33 years of age, and that his life expectancy was 32.36 years and that he was entitled to $15.60 per month during the remainder of his life, but that on account of his physical condition he did not expect to live the full period of 32.36 years, but that his physical condition was such that he would live for a period of 16 years and he asked damages for a breach of the contract in the sum of $2,999.99. He later filed an amended petition in which he alleged that he was wholly disabled from performing any duty and every kind of work or occupation for wages or profit and would be wholly and continuously disabled during the remaining period of his life, and on account of his physical condition he could not procure any other policy of insurance on his health of the same character and with the *467 same provisions as the policy issued to him by the defendant. A demurrer was sustained to the petition as amended, and the plaintiff having declined to plead further, judgment was entered dismissing his petition and amended petition, and from that judgment he appeals.
Appellant in this action seeks to recover damages for the alleged breach of the insurance contract by appellee, and he argues that the correct measure of damages is the amount of monthly indemnity due him while totally disabled by illness, or $15.60, multiplied by the number of months he expects to live. Mutual Life Insurance Company of Kentucky v. Twyman, 89 S.W. 178, 28 Ky. Law Rep. 167; Equitable Life Assurance Society v. Cosby (Ky.)
Here, if the appellee wrongfully fails or refuses to pay the indemnity due under the policy, a remedy is available to appellant by which he can recover the exact *468
amount owing to him by the terms of the contract. If the averments of his petition are true and he has become totally disabled by illness for the remainder of his life, the appellee will be indebted to him at the end of each month during his life in the sum of $20, subject to a credit of $4.40, the amount of the monthly premium. Under a contract like this the appellant should not be permitted to recover payments which, by reason of his death or recovery from his illness, might never accrue. Keith's Executor v. Hinkston, 72 Ky. (9 Bush.) 283; Frankfort C. Railway Company v. Jackson,
In Federal Life Insurance Company v. Rascoe (C.C.A.),
In the instant case the contract was executed on appellant's part. Furthermore, the monthly indemnity to which he claims he is entitled is for total disability resulting from illness and not from injury, and he concedes in his pleading that his expectancy in life is uncertain by reason of the very illness which, as he claims, has disabled him. The case of Ætna Life Insurance Company v. Phifer,
Whether or not the appellant may maintain an action in equity to prevent the cancellation of the policy by appellee is not determined, since that question is not presented by the pleadings, but we conclude that the facts alleged in the petition as amended did not justify the appellant in treating the entire contract as breached and suing for gross damages, and the judgment must be affirmed. This is without prejudice, however, to appellant's right to bring an action for the recovery of the matured installments. In such an action the right of appellee to repudiate the contract and cease payment of monthly indemnities can be tested.
Judgment affirmed.