Opinion
March 7, 1952. Rehearing Denied April 7, 1952.
Appeal from the Circuit Court, Volusia County, H.B. Frederick, J.
W.J. Gardiner, Daytona Beach, for appellant.
D.C. Hull, Hull, Landis, Graham French, DeLand, for appellee.
On July 3, 1950, Security Life and Trust Company filed in the Circuit Court of Volusia County, Florida, its amended bill of complaint against George Codman Odiorne under the several terms and provisions of Chapter 87, F.S.A., and alleged that the Court had jurisdiction of the cause. The prayer of the amended bill of complaint was for the Court below to make and enter a declaratory decree setting forth the legal rights of the respective parties, based upon a contract of life insurance containing certain disability features and a waiver by the company of the payment of agreed annual premiums in the event the insured became disabled within the meaning of the provisions of the policy. A copy of the policy and the application therefor were attached to and, by appropriate reference thereto, made a part of the amended bill of complaint.
The amended bill of complaint alleges that on the 18th day of May, 1928, George Codman Odiorne applied in writing to an agent of the Security Life and Trust Company, in Greenwood, South Carolina, for insurance upon his life, and that subsequently an insurance policy, in accordance with the application, was delivered by the plaintiff-appellant to George Codman Odiorne in the State of South Carolina on the 5th day of June, 1928. The contract of insurance contained the following terms and provisions with reference to permanent disability:
"Disability shall be considered total and permanent if the Insured is thereby wholly and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and such disability has existed continuously for ninety days immediately preceding receipt of due proof of such disability.
"The entire and irrecoverable loss of the sight of both eyes, or the loss of the use of both hands at or above the wrists, or the loss of the use of both feet at or above the ankle or the loss of one limb and one eye, or the loss of one hand at or above the wrist and of one foot at or above the ankle, shall be considered total and permanent disability.
"Proof of continued total and permanent disability of the Insured shall be required on forms prescribed by the Company, and any medical adviser of the Company shall be allowed to examine the person of the Insured in respect to any alleged disability at any time.
"If, however, the Insured recovers so as to be able to engage in any occupation for remuneration or profit, or if he fails to furnish due proof of continued total and permanent disability, the Company's obligation to pay installments and premiums shall cease and the Insured shall resume the payment of premiums on the premium due date following such recovery, or failure to furnish such proof."
The amended bill of complaint further alleges that in January, 1933, the insured sought benefits embraced within and provided for in the contract of insurance by reason of cataracts in both eyes. He was 48 years of age at the time of making claim of total and permanent disability as covered by the policy. His occupation was that of a civil engineer, but performed additional work as a contractor for sewer and paving. The insured claimed total permanent disability as covered by the policy due to the cataracts in his eyes and the lack of sufficient vision.
The Security Life and Trust Company approved the claim of total and permanent disability of the insured because of cataracts and insufficient eyesight and paid to the insured the sum of $100 per month continuously from July 15, 1933, until the filing of the bill of complaint in the Court below on December 23, 1948. Additional thereto annual insurance premiums in the sum of $420.60 due and payable under the terms and provisions of the contract of insurance were waived by the Security Life and Trust Company.
The amended bill of complaint also alleges that the insured was trained and educated as a civil engineer and had additional experience as a sewer and paving contractor. He followed other profitable pursuits and mercantile vocations, such as salesmanship, managing a store, managing and operating a chicken or poultry farm, and managed and operated a wholesale and retail feed store. That the insured has been, since the year 1933, physically and mentally able to engage in some profession, vocation or business other than that of a civil engineer and a sewer and paving contractor. That profits, gains and earnings which the insured has received continuously since 1933 compare favorably in amounts with the profits, gains and earnings which he would have received had he continued the work of a civil engineer and sewer and paving contractor.
It was further alleged that in February, 1940, the insured had a successful operation for cataract on his right eye. That the insured, since March, 1940, with the aid of special lens for his right eye, coupled with limited vision in his left eye, has sufficient vision and eyesight to enable him to engage in a vocation and do work for gain and profit which rationally approached and was sufficient to give insured approximately the same livelihood and standards which he enjoyed prior to his loss of vision. That he has recovered and has been able since March, 1940, to engage in an occupation for remuneration and profit and he is not now totally and permanently disabled. That the insured is now the owner of a wholesale and retail feed business at Port Orange and operates and manages the wholesale and retail feed business. That the monthly earnings of the insured now and for several years past have been $300 in the form of profits from the aforesaid occupations and businesses. That the insured has not lost the entire vision or sight of both eyes as covered by the disability features of the policy of insurance.
It was alleged that the insured knew at the time he made application for the contract of insurance on May 19, 1928, and at the time of the acceptance of the application by the insurance company on June 5, 1928, that he would within a few years have such impaired vision as would prevent him from doing or performing the occupation or vocation that he was pursuing at the date of application for the contract of insurance and at the time of acceptance by the insurance company. That the insured wilfully and fraudulently withheld from the insurance company the true condition of his eyes and the cataracts thereon, and he well knew of the existence thereof but so acted and misrepresented the facts as to perpetrate a fraud on the plaintiff-appellant. That because of the fraud and misrepresentation on the part of the defendant in obtaining the contract of insurance the same should by a decree of the court be declared void and of no force and effect. That the insured should be required to refund the annual premiums waived by the appellant because of the insured's fraudulent conduct in obtaining the contract of insurance.
In paragraph 12 of the amended bill of complaint it is alleged that the Security Life and Trust Company is in doubt and wishes to discover and have judicially determined by a declaratory decree and judgment of the Court the following: First, when, if ever, did the insured become totally disabled in accordance with the terms and provisions of the contract of insurance; second, if it is judicially determined that the insured was totally and permanently disabled, in accordance with the terms and provisions of said contract of insurance, on or after June 15, 1933, then when, if ever, did the insured recover so as to be able to engage in any occupation for remuneration or profit? Third, the rights and liabilities of the parties under the terms and provisions of the contract of insurance to do with the total permanent disability of the insured. An amendment dated January 10, 1951, set out that the Security Life and Trust Company did not discover the fraudulent acts of the insured described in the bill of complaint until one year prior to the institution of the case at bar, and such fraudulent acts were not known to the Security Life and Trust Company prior to one year from the institution of suit.
Other pertinent allegations are set out in the amended bill of complaint, but a recital thereof is unnecessary for a ruling on the law applicable to this controversy. On page 29 of the transcript appears the following incontestability clause set out in the contract of insurance: "After one year from date, if premiums have been fully paid, this policy shall be incontestable for any cause. All statements made by the insured in parts one and two of the application for this policy shall, in the absence of fraud, be deemed representations and not warranties and no statement of the insured shall void this policy or be used in defense of a claim hereunder unless it is contained in said application."
The defendant-appellee filed a motion to dismiss the amended bill of complaint on some twenty-four reasons or grounds, the following only are essential for a ruling on the issues presented: (1) there is no equity in the amended bill of complaint; (2) the amended bill of complaint does not make or state a case entitling the plaintiff to relief in a court of equity; (3) the policy of insurance, by reference made a part of the amended bill of complaint, provides that: "After one year from date, if premiums have been fully paid, this policy shall be incontestable for any cause"; (4) the amended bill does not state a case sufficient to motivate the jurisdiction of a court of equity under our declaratory decree statutes; (5) the amended bill of complaint does not show that there is any actual controversy and the judicial power can be exercised only in actual controversies; (6) the amended bill seeks to require the Court to write a treatise on the disability provisions of insurance contracts; (7) courts are not authorized by the declaratory decree statutes to answer abstract questions, to satisfy idle curiosity, to go on a fishing expedition or to give judgments that serve no useful purpose, and the power conferred by the statutes should be exercised sparingly and with caution. The Chancellor granted the motion to dismiss and the original plaintiff appealed.
The Chancellor below, in his order sustaining the motion to dismiss the amended bill of complaint, made and set out certain observations which, in part, are as follows: (1) the plaintiff has been paying the insured $100 per month since June, 1933, and has waived the annual premium of $420.60 during the entire period; (2) the plaintiff for fifteen years dealt with the insured as a totally permanently disabled man and made disability payments and waived the payments of annual premiums "without legal compulsion of any kind"; (3) it is alleged that the sight of the insured was restored by operation after March, 1940, but, regardless of the alleged restoration, the plaintiff-appellant made disability payments and waived payment of annual premiums; (4) these payments and waivers were voluntary and without legal compulsion; (5) plaintiff could have required, under the contract of insurance, proof of total permanent disability but failed so to do; (6) twenty years after the policy issued the Court is requested to cancel it on the ground of fraud; (7) the incontestable clause provides that "after one year from date if premiums have been fully paid, this policy shall be incontestable for any cause"; (8) the appellant could have refused disability payments and waiver of payment of annual premiums, leaving the insured free to pursue appropriate legal remedies; (9) the allegation of fraud conflicts with the provisions of the incontestable clause of the policy.
It is our view and conclusion that the plaintiff-appellant has not met the burden resting upon it by our adjudications to establish error. See Chapter 87, F.S.A.; Ready v. Safeway Rock Co., 157 Fla. 27, 24 So.2d 808; City of Pensacola v. Johnson, 159 Fla. 566, 28 So.2d 905; Deen v. Weaver, Fla., 47 So.2d 539, and similar cases.
Affirmed.
SEBRING, C.J., MATHEWS, J., and PARKS, Associate Justice, concur.