Opinion
No. 183.
July 25, 1944.
Appeal from the Municipal Court for the District of Columbia, Civil Division.
Justin L. Edgerton, of Washington, D.C., for appellant.
Renah F. Camalier, of Washington, D.C., for appellee.
Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.
This is an appeal by an insurance company and results from a verdict directed against it in an action to recover disability payments.
The insured, plaintiff below, had two life insurance policies with the company. Attached to them were disability agreements by which he became entitled to waiver of premiums and to payments totalling $100 per month in the event he became totally and permanently disabled.
After paying the additional premium for such protection for more than 14 years, the insured became ill and ultimately suffered a heart attack. His ailment was diagnosed as posterior coronary occlusion, meaning that one of the arteries feeding blood to his heart had become blocked. According to his testimony, he being the only witness for either party, he was ordered to bed by his physician and remained immobilized for two months. Thereafter, he was permitted to sit up in a chair for a few minutes each day, and about four months after the attack he was permitted to take short automobile drives. More than eight months after the attack he returned to work, under circumstances we shall later describe. Plaintiff had for many years been employed by the local telephone company and at the time he was stricken was general plant manager, heading a department of about 2000 employees. The position was a very responsible one, involving long hours of hard work and great mental strain.
During his illness plaintiff consulted four local physicians, three of them specialists in treating diseases of the heart. He submitted to numerous tests, including electrocardiograms. All substantiated the original diagnosis of posterior coronary occlusion. About eight months after he was stricken his condition had improved sufficiently so that he was able to go to Boston to consult an outstanding heart specialist in that city. That physician told him he probably owed his life to the fact that he had followed instructions and remained in bed. Counseling still further caution, he told the insured to take several weeks to get his nerves in shape and that he might then return to work if he could arrange to be assigned to work involving shorter hours and less strain.
Returning to Washington he submitted to an operation for removal of his tonsils. After recuperating from that operation he again consulted one of his local physicians who advised him against resuming work. Nevertheless he decided to take the risk and returned to work, assuming lighter duties which had been assigned to him by the telephone company. He actually returned to work one year after the first diagnosis of heart trouble and about eight months after the attack which had disabled him.
His claim, as reflected in the suit below, was for nine months' disability payments and return of premiums covering the same period. As we explain below, his computations under the policy are incorrect; but we proceed first to decide the basic questions on the appeal.
1. Was the disability "total and permanent" within the meaning of the policy? The policy provides that to become entitled to disability benefits the insured must establish that he has: "* * * become totally and permanently disabled by bodily injury or disease, so that he is and will be thereby permanently and continuously prevented from engaging in any occupation or profession, or performing any work for compensation, gain or profit and that such disability has then existed for not less than sixty days * * *."
It also provides that payments shall commence one month after filing of "due proof." It authorizes the company to demand proof of continuance of disability not oftener than once a year, and clearly provides that premiums are to be waived and income payments made only during the continuance of the disability.
Courts have differed sharply in construing provisions of this kind. Some have taken the view that an insured cannot recover on such a policy unless he establishes not only that he is totally disabled but that he will remain so for life. One of the cases most frequently cited in support of this view is Ginell v. Prudential Ins. Co., 237 N.Y. 554, 143 N.E. 740, decided in 1923 (adopting a dissenting opinion of a judge of the Appellate Division, 205 App. Div. 494, 200 N.Y.S. 261). The effect of that holding is that the word permanent must be given its usual dictionary meaning and that an insured who cannot show that his injury or disease is completely permanent and lasting throughout life cannot recover. There are numerous other cases which take the same view.
Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707, 79 A.L.R. 852; Job v. Equitable Life Ins. Co., 133 Cal.App. Supp. 791, 22 P.2d 607; Mutual Life Ins. Co. v. Wheatley, 243 Ky. 69, 47 S.W.2d 961, (but see two later Kentucky cases cited in footnote 2); Lewis v. Metropolitan Life Ins. Co., La. App., 142 So. 262; Yoffa v. Metropolitan Life Ins. Co., 304 Mass. 110, 23 N.E.2d 108; Hovhanesian v. New York Life Ins. Co., 310 Mass. 626, 39 N.E.2d 423, 138 A.L.R. 1369; Brod v. Detroit Life Ins. Co., 253 Mich. 545, 235 N.W. 248; Paul v. Missouri State Life Ins. Co., 228 Mo. App. 124, 52 S.W.2d 437; Ginell v. Prudential Ins. Co., 237 N.Y. 554, 143 N.E. 740; Grenon v. Metropolitan Life Ins. Co., 52 R.I. 453, 161 A. 229; Metropolitan Life Ins. Co. v. Noe, 161 Tenn. 335, 31 S.W.2d 689.
On the other hand, as the annotator points out in 97 A.L.R. 126: "* * * the decided tendency of the recent cases * * * has been to favor a rather liberal interpretation of the term 'permanent,' * * * instead of the strict construction that was applied in Ginell v. Prudential Insurance Co., 1923, 237 N.Y. 554, 143 N.E. 740 * * *."
Clarkson v. New York Life Ins. Co., D.C.S.D.Fla., 4 F. Supp. 791; Penn Mutual Life Ins. Co. v. Milton, 160 Ga. 168, 127 S.E. 140, 40 A.L.R. 1382; Adamson v. Metropolitan Life Ins. Co., 42 Ga. App. 587, 157 S.E. 104; Greenberg v. Metropolitan Life Ins. Co., 379 Ill. 421, 41 N.E.2d 495; Hawkins v. John Hancock Mutual Life Ins. Co., 205 Iowa 760, 218 N.W. 313; Garden v. New England Mutual Life Ins. Co., 218 Iowa 1094, 254 N.W. 287; Equitable Life Assur. Soc. v. Preston, 253 Ky. 459, 70 S.W.2d 18; Jefferson Standard Life Ins. Co. v. Hurt, 254 Ky. 603, 72 S.W.2d 20; Plummer v. Metropolitan Life Ins. Co., 132 Me. 220, 169 A. 302; Maze v. Equitable Life Ins. Co., 188 Minn. 139, 246 N.W. 737; Bahneman v. Prudential Ins. Co., 193 Minn. 26, 257 N.W. 514, 97 A.L.R. 121; Equitable Life Assur. Sec. v. Serio, 155 Miss. 515, 124 So. 485; Wenstrom v. Aetna Life Ins. Co., 55 N.D. 647, 215 N.W. 93, 54 A.L.R. 289; Losnecki v. Mutual Life Ins. Co., 106 Pa. Super. 259, 161 A. 434; Janney v. Scranton Life Ins. Co., 315 Pa. 200, 173 A. 819; State Life Ins. Co. v. Atkins, Tex.Civ.App., 9 S.W.2d 290; Gibson v. Equitable Life Assur. Soc., 84 Utah 452, 36 P.2d 105; Trainor v. Mutual Life Ins. Co., D.C.W.D.Wis., 42 F. Supp. 206.
Some courts expressly decline to follow the Ginell case and refuse to interpret the word permanent to mean lasting until death. Others take the view that giving the policy a reasonable interpretation, the insured need only establish that the injury or disease was not merely a passing one but was such as would in all probability continue for a long and indefinite period of time — that is to say, that it was presumably permanent. But whatever the approach they all reach a conclusion opposite to that announced in the Ginell case.
There is no reconciling these two views. We must choose between them. In making our decision we must be guided by reason, and construe the policy not as lexicographers, but as judges bent on giving the words in the policy a reasonable interpretation — one that will not do violence to the purpose and understanding of the parties.
We cannot accept the New York rule. We feel that to establish a case of permanent disability a plaintiff need not show that his illness was lifelong and unending, or without any hope or possibility of recovery or improvement. We rule that the disability need not always be of a type which must "be accepted to be absolutely permanent and absolutely continuous and absolutely to prevent the insured forever or during his lifetime from engaging in any gainful occupation."
Atlantic Life Ins. Co. v. Hurt, 254 Ky. 603, 72 S.W.2d 20, 24.
Appellant points to the provisions of the policy that the insured must establish that he is and will be permanently and continuously prevented from engaging in any work for compensation. But we think that means no more than that the insured was entitled to no benefits after he became able to work. That is probably why the minimum sixty-day waiting period was provided, before insured could even offer proof of disability; and why an additional month was to elapse before payments were to commence. That is undoubtedly also the reason for the clause providing that disability payments and waiver of premiums were to cease when insured was able to resume his work. The legal aspects of such a situation are admirably stated in Hawkins v. John Hancock Mut. L. Ins. Co., 205 Iowa 760, 218 N.W. 313, 315, where the court said: "It is one thing to withhold benefits as long as life lasts in order to avoid the possibility of any mistake and pay nothing until it is finally and conclusively determined that the injury is permanent, which in many cases can only be at death, and an entirely different thing to accept provisionally apparent proofs of permanency and make payment accordingly — that is, to give the insured the benefit of his seeming condition while it lasts with the right of the company to discontinue should the condition turn out to be temporary. Fairness to the policyholder requires that reasonable evidence of permanency be accepted and the benefit paid so long as such apparent permanency exists, but, if it later appears that the seeming permanent condition is not such, that then the company shall be no longer held to continue paying benefits."
That this policyholder regained his health was remarkable. It was, as his Boston specialist pointed out, a tribute to his faithful obedience to orders and his determination to get well. Very likely also it was a tribute to the skill and care of his local physicians. Recover he did. But that fortunate recovery should not prevent him from claiming that his disease, while it lasted, was seemingly and presumably permanent. We cannot overlook the uncontradicted medical testimony that the physicians said it was permanent. If he had died, it could not reasonably be argued that his illness had not been permanent. Does the fact of his recovery vest any of us with "the wisdom of hindsight" and permit us to brush aside his long siege of invalidism as a mere fleeting indisposition? We think not. As was said in Bahneman v. Prudential Insurance Co., 193 Minn. 26, 257 N.W. 514, 517, 97 A.L.R. 121: "The mere fact that plaintiff has now recovered to some extent, at least to the extent that he is no longer wholly incapacitated, should not, and * * * cannot, prevent recovery."
The law does not require that one who is disabled must either recover or die before his status can be fixed. Under such a doctrine he would lose either way.
2. Did insured furnish due proof of his disability? The company argues that he did not. But the record shows that plaintiff notified the company of his disability, in writing, more than sixty days following his attack; that a representative of the company called on him and took a history of the case; that such representative obtained plaintiff's signature on forms authorizing the company to obtain information from his physicians; that when requested by the company the insured furnished a statement of his attending physicians; that he willingly agreed to submit to an examination by the company physician and did so submit. Nor is there any showing that plaintiff withheld any information or declined any request of the company.
According to the rule in the federal courts the "due proof" called for in such policies is not, in the absence of express language, required to be in any particular form. The purpose of the requirement is merely to give the insurer a reasonable opportunity to investigate and test the validity of the claim. The proof need not be such as to satisfy the company of the existence of the disability, but need only be such as would, if reasonably established in court, make out a prima facie case requiring payment of the claim. We therefore rule that the proof furnished the company was both sufficient and timely.
4 Moyer v. AEtna Life Ins. Co., D.C.M.D.Pa., 39 F. Supp. 725.
American National Ins. Co. v. Yee Lim Shee, 9 Cir., 104 F.2d 688.
Wayne v. New York Life Ins. Co., 8 Cir., 132 F.2d 28; Standard Acc. Ins. Co. v. Bennett, 8 Cir., 16 F.2d 721, 49 A.L.R. 1524; American Central Life Ins. Co. v. Palmer, 193 Ark. 945, 104 S.W.2d 200; Bagnall v. Travelers' Ins. Co., 111 Cal.App. 714, 296 P. 106; Robertson v. Mutual Life Ins. Co., 232 Iowa 743, 6 N.W.2d 153; Crawford v. Metropolitan Life Ins. Co., Mo. App., 167 S.W.2d 915; Travelers' Ins. Co. v. Cadena, Tex.Civ.App., 91 S.W.2d 1112; Jarvis v. Northwestern Mut. Relief Ass'n, 102 Wis. 546, 78 N.W. 1089, 72 Am.St.Rep. 895.
3. Appellant assigns error in the refusal of the trial judge to grant certain instructions. But since the case was never submitted to the jury the question is of no moment on this appeal.
4. The amount of the judgment calls for correction. The verdict allowed $900 for disability payments and $215.73 for premiums returnable. Both items were incorrectly computed. As to disability payments: under the policy plaintiff was entitled to $100 per month, not for the nine months he was disabled, but only for six months, commencing on November 23, 1941 (one month after the company had received his proof) and running to the following April, when he returned to work. Thus he should have been awarded disability payments totalling $600, or $300 less than allowed in the verdict. As to the return of premiums: insured was entitled to have his payments waived from the time he furnished proof of his disability until the disability ceased; that is to say, from October 23, 1941 to April 29, 1942. Properly computed, this amounts to $148.50, or $67.23 less than allowed in the verdict. These two deductions, totalling $367.23, should be credited against the judgment. We therefore modify the judgment to require that plaintiff file in the trial court, within ten days from the effective date of our mandate, a remittitur in the sum of $367.23; otherwise a new trial is to be ordered. With that modification the judgment is affirmed. We recently had occasion to take similar action by way of modification of a judgment which had been incorrectly computed. See Group Health Ass'n v. Shepherd, D.C.Mun.App., 37 A.2d 749, and cases there cited.
Modified and affirmed, with costs against appellant.