88 S.W.2d 763 | Tex. App. | 1935
Lead Opinion
Appellee sued appellant to recover disability benefits under a policy of life insurance alleging that since April 1, 1930, he has been permanently, continuously, and wholly prevented from performing any work for compensation or profit, or from following any gainful occupation by reason of disease, and that appellant is obligated to pay him the sum of $50 per month from April 1, 1930, to November 1, 1932.
The provisions of the policy upon which appellee rests his case are as follows:
"Total and permanent disability: If the insured, after paying at least one full annual premium and before default in the payment of any subsequent premium, and before attaining the age of sixty years, shall become wholly and permanently disabled by bodily injury or by disease, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work for compensation or profit, or from following any gainful occupation, the Company, upon receipt at its Home Office of due proof of such disability of the insured as may be required by the Company, will grant the following benefits:
"First: Will waive payment of premium thereafter becoming due;
"Second: In addition will pay to the insured a monthly income equal to one per cent. of the original amount of insurance (exclusive of any accidental death benefit.) The first monthly payment will be made upon satisfactory proof of disability as above provided, and the subsequent monthly payments will be made on the first day of each month thereafter during such disability."
Appellee made proof of his alleged disability about November 22, 1932. *764
Appellant paid appellee, regularly, each month, after proof was furnished to it, by appellee, the monthly installment due and payable, under the policy, but he here asks for all monthly payments back of the time he made proof of his disability, and, apparently, relies upon the decisions which permit the waiver of payment of premium to begin with the time of disability rather than with the time of proof of disability made to the insurer.
We do not believe that such decisions are applicable to this case.
Mr. Justice Sutherland in delivering the opinion by the Supreme Court of the United States, in the case of Bergholm v. Peoria Life Insurance Co.,
The provisions of the policy upon which suit was brought to recover monthly benefits (as in this case) are:
"Upon receipt by the Company of satisfactory proof that the Insured is totally and permanently disabled as hereinafter defined the Company will
"1. Pay for the Insured all premiums becoming due hereon after the receipt of such proof and during the continuance of the total and permanent disability of the Insured and will also
"2. Pay to the Insured a Monthly Income for life of 1% of this Policy; the first payment of such income to be paid immediately upon receipt of such proof."
Much stress is laid upon the decision of the Circuit Court of Appeals, 8th Circuit, in the case of Minnesota Mutual Life Insurance Co. v. Marshall,
The case of State Life Insurance Co. v. Barnes (Tex. Civ. App.)
We are of the opinion that the judgment of the trial court should be reversed and here rendered. Jefferson Standard Life Insurance Co. v. Williams (Tex. Civ. App.)
In the case before us, the insured does not plead when he made his proof of disability, but merely alleges that he made *765
due proof thereof, and when his evidence is analyzed we find that he waited 32 months before he attempted to furnish proof of his disability, and he neither pleads nor proves any excuse for such delay. Missouri State Life Insurance Co. v. Le Fevre (Tex. Civ. App.)
Appellant specially excepted to the sufficiency of appellee's petition in so far as his allegations of proof of disability are concerned because they do not show "when and on what date, and in what way plaintiff gave notice, or furnished proof to the defendant of his disability."
The trial court overruled the exception, and this is brought before us by proper assignment of error.
The special exception is well taken. Assuredly the appellant was entitled to require appellee to specifically plead when and how he gave notice of his disability and furnished proof thereof to it, in order to properly meet such issue by both pleadings and evidence.
It is true that much more latitude is given the trial court when trying a cause without the intervention of a jury, than when the cause is tried to a jury, but if the pleading is defective and is properly attacked, it should not be permitted to stand, although the cause is tried to the court. But the assignment of error just sustained by us does not require a remand of the cause, for the reasons that the undisputed evidence shows that appellee made no proof of his disability for 32 months after he claims to have suffered such disability, and no excuse for failure to make such proof sooner is pleaded.
We are of the opinion that there is no provision, in the policy before us, with respect to any waiver of notice of disability of the assured, as affects his right to disability benefits, and none is pleaded or proved, independently of the provisions of the policy, and therefore the insured is entitled to the disability benefits only that are provided for in the policy, after he made such proof to the assured.
Accordingly, the former judgment of this court is set aside, and judgment here rendered that appellee take nothing against appellant. Reversed and rendered.
Dissenting Opinion
It will be readily understood that the decision of this case depends entirely upon the construction to be given to the quoted provisions in the policy of insurance issued to the plaintiff below. There was no conflict in the testimony introduced. It showed conclusively that the plaintiff had contracted tuberculosis some time prior to April, 1930; that for a long time he had endeavored to go to his office and do his work. His physician would put him to bed, but when he felt better he would get up and try to perform his usual duties, but that from and after April 1, 1930, he was never able to work at all. But as the days lengthened into weeks and weeks into months, he yet entertained that hope which "springs eternal in the human breast" that he would get well again and get back to his work. It was shown that this hope is one of the peculiar susceptibilities (shall we call it, rather than symptoms?) of the tuberculosis sufferer, and sustains and strengthens him as he fights his grim and losing battle against the great White Plague. So he kept his insurance paid up, and did not apply for his monthly benefit until November, 1932, when, upon application for his past benefits, he was met by the claim of the defendant company that such benefits did not accrue until after he had filed the proofs called for in the policy of insurance.
This is a most interesting question. Shall the benefits begin, under this contract, from the date of the disability or from the date of the proof thereof? Stated in another form, the question is whether proof of disability is a condition precedent to the liability of the insurer or only a condition precedent to suit on the policy? The decision of the entire case depends upon the proper construction of the contract of insurance in this record. If appellant is correct in its construction, then its general exception should have been sustained, while, on the other hand, if appellee be correct in his interpretation, then the record fully supports the judgment of the trial court.
Appellant depends, and the majority opinion rests, in a large measure, upon the decision of the Supreme Court of the United States in the case of Bergholm v. Peoria Life Insurance Co.,
The provision for waiver in the Bergholm Case was "upon receipt by the Company of satisfactory proof that the Insured is totally and permanently disabled as hereinafter defined the Company will" (1) Pay premiums. (2) Pay monthly indemnity.
The effect of the action of the Supreme Court is therefore to let both decisions stand as the settled law of the land.
Chief Justice McClendon, of the Austin Court of Civil Appeals, in a case based upon the identical provisions in the policy in the case at bar, held, after quoting at length from the Bergholm and the Marshall Cases, that the construction was ruled by the Marshall decision. Recognizing the fact that "authorities in other jurisdictions are not in accord upon the question," he concludes that "those in this state, which we think are supported by the better reasoning, hold that the waiver took effect at the time of the disability, and did not depend upon the time when proof thereof was furnished" — citing the Marshall Case (C.C.A.)
The phraseology of the policy in the Marshall Case and that of the case at bar are not exactly the same, it is true, but the legal effect is certainly the same, while that of the Barnes Case is identical.
In the case of Jefferson Standard Life Insurance Co. v. Williams,
The writer has carefully considered the briefs and arguments of counsel, and has reached what seems to him to be not only the legal conclusion of the matter, but what we may call a "common sense" solution of a somewhat vexed problem.
Appellant sold and appellee bought certain protection against the common enemies of all mankind; death and disability. The insured met with disability early in 1930. Not recognizing his condition, but *767 buoyed up by false hope, he delayed making his claim at the time, and, like a valiant soldier, fought his enemy to the last ditch, doubtless believing all the time that he would finally win the battle, but probably resting securely under the conviction that if he lost in the end, upon proper proof being made, the insurer would pay his $50 per month. This, I think, he is entitled to under the law of this state, as well as the common sense of the question. It is what he bought and paid for, in my judgment.
I think the judgment of the trial court should be affirmed.