Opinion
May 20, 1940.
1. — Insurance — Waiver — Words and Phrases. Under insurance rider providing for premium waiver and monthly benefit payments on proof that insured has become totally and permanently disabled, the term "permanently" as used therein did not "mean forever thereafter during insured's life" and defendant was liable for payment of benefits to insured during continuance of total disability lasting approximately a year, though insured had resumed his employment and was not disabled at time of trial.
2. — Insurance — Waiver — Words and Phrases. Insurer's denial of liability for reason that insured was not "totally and permanently" disabled within meaning of rider, held to be waiver of proofs of disability.
3. — Insurance — Waiver. Since first paragraph of rider provides for waiver of premiums and payment of disability benefits during entire period of total disability (if such total disability continues for more than three months) and second paragraph provides that benefit payments shall begin as of date of commencement of disability and on anniversary of policy's next succeeding date of disability, waiver did not begin more than six months prior to receipt of proofs of disability, second paragraph held to modify provisions of first paragraph, waiver beginning on next anniversary of policy succeeding date of disability.
Appeal from Circuit Court of Randolph County. — Hon. A.R. Hammett, Judge.
AFFIRMED ( on condition of remittitur).
Harry Cole Bates, Michael, Blackmar, Newkirk, Eager Swanson and Hunter Chamier for appellant.
(1) The court erred in rendering judgment for respondent because, under the law and the evidence of this case, he was not entitled to recover. (a) Because the evidence shows that plaintiff was not totally and permanently disabled during the period of time claimed, but, at the most, was only totally and temporarily disabled, which disability is not covered by the contract in question. Pearlman v. Metropolitan Life Ins. Co. (Pa.), 9 A.2d 432; Garabedian v. Metropolitan Life Ins. Co., 135 Pa. Super. 320; Wolff v. Prudential Ins. Co. of America (R.I.), 3 A.2d 897; Richards v. Metropolitan Life Ins. Co. (Wash.), 55 P.2d 1067; Shipp v. Metropolitan Life Ins. Co. (Miss.), 111 So. 453; Read v. Metropolitan Life Ins. Co. (N.C.), 174 S.E. 307; Cassens v. Metropolitan Life Ins. Co. (Fla.), 154 So. 522; Lewis v. Metropolitan Life Ins. Co. (La.), 142 So. 262; Leibson v. Metropolitan Life Ins. Co. (Ill.), 18 N.E.2d 99; Yoffa v. Metropolitan Life Ins. Co. (Mass.), 23 N.E.2d 108; Metropolitan Life Ins. Co. v. Noe (Tenn.), 31 S.W.2d 689; State ex rel. Mutual Benefit Health and Accident Association v. Trimble et al. (Mo.), 68 S.W.2d 685; State ex rel. Mutual Life of New York v. Shain et al. (Mo.), 126 S.W.2d 181; (b) Because his proof of disability received by appellant on June 23, 1937, was that he was not totally and permanently disabled at that time. Jacoby v. New York Life Ins. Co. (Mo. App.), 77 S.W.2d 841, 845; Porter v. Equitable Life Assurance Society of the United States (Mo. App.), 71 S.W.2d 766, 773; Farage v. John Hancock Mutual Life Ins. Co. (Mo. App.), 81 S.W.2d 344; State ex rel. v. Trimble, 303 Mo. 266, 259 S.W. 1052; Mackenzie v. Equitable Life Assurance Society of the United States (N.Y.), 251 N.Y.S. 528; Wetherall v. Equitable Life Assurance Society of the United States (Mich.), 263 N.W. 745; Metropolitan Life Ins. Co. v. Blue (Ala.), 222 Ala. 665, 133 So. 707, 79 A.L.R. 852. (c) Because the court's findings and declarations in favor of plaintiff are based on speculation, surmise and conjecture and not on competent, substantial evidence. Verdicts and findings of juries and courts must be based on substantial evidence, on evidence which has probative force and not merely on speculation, surmise and conjecture. Van Bibber v. Swift Co., 286 Mo. 317, 228 S.W. 69, 76; Watkins v. Bird-Sykes-Bunker, 322 Mo. 830, 16 S.W.2d 38; Keim v. Blackburn (Mo.), 280 S.W. 1046; Lindman v. Altman, 308 Mo. 187, 271 S.W. 512; Hamilton v. Ry. Co., 318 Mo. 123, 134; Levi et al. v. M., K. T. Ry. Co., 157 Mo. App. 536, 545; Powell v. Walker, 195 Mo. App. 150, 185 S.W. 532; 23 C.J. 51. (2) The court erred in rendering judgment on the theory that the contract in question was ambiguous, as to the time when disability payments were to begin and premiums were to be waived, because the contract is clear and plain and unambiguous as to such questions. Sherman et al. v. Metropolitan Life Ins. Co. (Mass.), 8 N.E. 892, 893, 895; Grafe v. Fidelity, etc., Ins. Co. (Mo. App.), 84 S.W.2d 400; Rowan v. New York Life (Mo. App.), 124 S.W.2d 577; Feinberg v. New York Life (Mo. App.), 127 S.W.2d 82; State ex rel. v. Shain (Mo.), 127 S.W.2d 675. (3) The court erred in declaring and holding that appellant waived the time that the waiver was to begin and payments were to be made, for the reason there could be no such waiver, because furnishing proof of an insurable disability was a condition precedent to the creation of the cause of action, and this condition precedent cannot be waived and waiver can never give rise to a cause of action. Clinton v. Met. Life Ins. Co. (Mo. App.), 94 S.W.2d 1080; Sapaw v. Met. Life Ins. Co. (Mo. App.), 94 S.W.2d 1082; Anderson v. Met. Life Ins. Co. (Mo. App.), 96 S.W.2d 631; Young v. Met. Life Ins. Co. (Mo. App.), 84 S.W.2d 1065; Shepard v. Met. Life Ins. Co. (Mo. App.), 99 S.W.2d 144; White v. Met. Life Ins. Co. (Mo. App.), 107 S.W.2d 957; Meadows v. Met. Life Ins. Co. (Mo. App.), 104 S.W.2d 788; Chapman v. Met. Life Ins. Co. (Mo. App.), 132 S.W.2d 1096; Wolff v. Prudential Life Ins. Co. (R.I.), 4 A.2d 897. (4) If respondent's contention is correct, which is denied, then the verdict is excessive and erroneous for the reason that it includes waiver of premiums prior to the anniversary of the policy next succeeding the commencement of the disability. Feinberg v. New York Life Ins. Co. (Mo. App.), 127 S.W.2d 82; Bergholm v. Peoria Life Ins. Co., 284 U.S. 489. (5) The court erred in refusing to give appellant's finding No. 16 which declared that respondent could not recover because he was not totally and permanently disabled, because he was not permanently and totally disabled and therefore was not entitled to recover. (6) The court erred in giving on its own motion finding No. 16, which declared that respondent was not totally and permanently disabled but seemed and appeared to be permanently and was totally disabled because it is contradictory and there is no evidence to support the finding that he seemed and appeared to be permanently disabled and it is therefore unsupported by evidence and based on surmise and conjecture and not on competent substantial evidence. (7) The court erred in refusing appellant's declaration No. 1, in the nature of a demurrer to the evidence, because under the law and the evidence of this case the respondent was not entitled to recover. (8) The court erred in refusing appellant's requested Declarations of Law 2, 5 and 7, and requested respondent's requested Declarations A, B, and C, because in so doing the court declared first, that the contract was ambiguous as to the disability insured against and as to the time payment of benefits and waiver of premiums should begin. This ruling is error because the contract is clear, unambiguous and not open to interpretation and, by the plain meaning of the contract, respondent was insured against total and permanent disability and not a disability in fact seeming and appearing to be permanent, but not in fact permanent, and by the plain meaning of the contract appellant was to begin payments and waive premiums for disabilities existing not more than six months prior to the receipt of the required proof; second, that there was no waiver of the requirement that there must be a disability within the period of time not more than six months immediately preceding receipt of proof, because such requirement was the condition preceding to creating the cause of action and unless proofs were furnished and there was an insurable disability within the time six months preceding receipt of proof there could be no liability or cause of action and because a cause of action can never be created by a waiver.
Thos. J. Tydings for respondent.
(1) Respondent is entitled to recover under the law and the evidence. Laupheimer v. Mass. Mut. Life Ins. Co., 24 S.W.2d 1058; Laupheimer v. N.W. Life Ins. Co., 24 S.W.2d 1062; Stoner v. N.Y. Life Ins. Co., 90 S.W.2d 784; Thomas v. Metropolitan Life Ins. Co., 89 S.W.2d 590; Corcoran v. Metropolitan Life Ins. Co., 93 S.W.2d 1027; Heralds of Liberty v. Jones, 142 Miss. 735, 107 So. 519. (2) The supplementary contract is ambiguous both as to disability covered thereby and as to time when monthly benefits begin, and construction most favorable to respondent (insured) should be given to said contract. Swanson v. Ga. Cas. Co., 315 Mo. 1007; Black v. U.S.F. G. Co., 316 Mo. 278; Laupheimer v. Mass. Mut. Life Ins. Co., supra; Lamaitre v. Natl. Cas. Co., 195 Mo. App. 599; O'Connor v. St. L. Am. B.B. League, 193 Mo. App. 167. (3) By denying liability upon the sole ground that respondent's disability was not permanent, appellant waived the right to object to the proof of disability, both as to the timeliness or sufficiency thereof, and also waived all other defenses, if any. Thomas v. Metropolitan Life Ins. Co., 89 S.W.2d 590; Corcoran v. Metropolitan Life Ins. Co., 93 S.W.2d 1027; Burgess v. Merc. Town Mutl. Ins. Co., 114 Mo. App. 169; Brix v. Am. Fidelity Co., 171 Mo. App. 518; Ex. Bank v. Thuringia Ins. Co., 109 Mo. App. 654. It is the rule in this State that when an insurance company denies liability and states the ground, or grounds, for such denial, it waives all grounds not so specified. In its letter of November 16, 1927, defendant denied liability on the sole ground that plaintiff had failed to report acquisition of the Willys-Knight car within thirty days. No other reason for denying liability in the letter and defendant waived its rights, if any, to deny liability on any other ground. Ash Grove Lime P.C. Co. v. So. Surety Co., 39 S.W.2d 411; Coffe v. Surety Co., 321 Mo. 140. (4) Where an insurance policy contains repugnant clauses, the first governs, rather than the following. Lemaitre v. Natl. Cas. Co., 195 Mo. App. 599; Caine v. Physicians' Ind. Co., 45 S.W.2d 904; Kimbrough v. Natl. Pro. Ins. Assn., 35 S.W.2d 658. Policy provisions conferring benefits for total disability from disease and requiring physician's services, held repugnant to provision withholding benefits unless insured was attended by physician; hence provision withholding benefits was unenforceable. Miller v. Mut. Ben. Health A. Assn., 56 S.W.2d 795, citing; Kimbrough v. Natl. Pro. Ins. Assn., 35 S.W.2d 654; Mathews v. Mod. Woodmen, 236 Mo. 326; State ex rel. v. Trimble, 327 Mo. 899.
Plaintiff Frank A. Lee, sued defendant, Metropolitan Life Insurance Company, for monthly benefit payments accruing to him, and for return of premiums paid, during continuance of disability under the terms of a rider attached to an insurance policy issued to plaintiff by defendant. Trial was to the court without a jury and judgment was for plaintiff. Defendant appeals.
The provisions of the rider here in controversy are as follows:
"Hereby agrees, that upon receipt . . . of due proof, . . . that the insured has, . . . become totally and permanently disabled, . . . so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will, during the continuance of such disability.
"`1. Waive the payment of each premium falling due under said Policy and this Supplementary Contract, and,
"`2. Pay to the insured, or a person designated by him for the purpose, . . . a monthly income of $10 for each $1,000 of insurance, or of commuted value of installments, if any, under said Policy.'
"Such waiver shall begin as of the anniversary of said Policy next succeeding the date of the commencement of such disability, and such payments shall begin as of the date of the commencement of such disability, provided, however, that in no case shall such waiver begin as of any such anniversary occurring, nor shall such payments begin as of a date, more than six months prior to the date of receipt of the required proof.
. . . . . . .
"Notwithstanding that proof of disability may have been accepted by the Company as satisfactory, the insured shall at any time, on demand from the Company, furnish due proof of the continuance of such disability, but after such disability shall have continued for two full years the Company will not demand such proof more often than once in each subsequent year." (Italics ours.)
The case was tried on an agreed statement of facts, except for the testimony of the medical witness offered by defendant. The policy and rider were issued and bore date of March 1, 1929, and all premiums thereon were fully paid. Plaintiff was totally disabled from June 18, 1934, until July 10, 1935, on which last-mentioned date he resumed his employment. He was not disabled at the time of trial, nor had he been disabled since his return to employment as above stated.
Plaintiff first wrote defendant, under date of April 19, 1937, notifying it of his above mentioned disability, and requesting proofs of loss. On April 22, 1937, defendant forwarded proper forms for making proofs, together with a letter which stated, in part, as follows:
"Before proceeding with your claim, we should like to point out that your policy provides benefits only in the event of total and permanent disability among other things, and makes no provision for disabilities of a temporary or partial nature. If you are now both totally and permanently incapacitated for the performance of any and all kinds of remunerative work, the enclosed blank Form 0345 should be completed by you."
On July 27, 1937, defendant wrote plaintiff as follows:
"We are in receipt of your letter of July 16 from which we find that there is still some disagreement between us as to the terms of the disability provision of your policy and our inability to allow indemnity for temporary incapacity.
"May we ask you to refer to the disability agreement and you will see that it requires proof that the insured has become totally and permanently disabled and that such disability has already continued for at least three months. There is no provision that benefit will be paid in case of disability for three months or any other period of time when that disability is not permanent and you will appreciate that if that had been the intent of the contract it would have been so stated plainly and there would have been no reference to the requirement of proof that the insured has become permanently disabled. Thus you will observe that the disability provision limits benefits to such incapacity as is permanently total. No provision is made for incapacitiies of a temporary or partial character as is the case with some other forms of insurance.
"In the light of the foregoing facts we are sure that you will agree that we are not in a position to be of assistance to you in this instance." (Italics ours.)
Defendant sought to prove by a medical witness, by direct question and answer, that plaintiff was never, in fact, totally permanently disabled, for the reason that he had fully recovered his health and was, at the time of trial, able-bodied.
Defendant contends here, as it contended below, that the provisions of the rider never became operative because plaintiff was never "permanently and totally" disabled within the meaning of the policy because he, in fact, fully recovered; and that no presumption of "permanent" disability could be indulged in after total disability of three months, for the reason that his complete recovery, prior to date of trial, negatived such presumption.
We construed language similar to that used in this policy in the case of Laupheimer v. Massachusetts Mutual Life Insurance Company, 24 S.W.2d 1058. We there stated that the point raised was one of first impression in this State. At the time of trial, in that case, it was admitted that plaintiff was not then "permanently" disabled; but we held defendant liable, under the terms of its contract, for payment of benefits during continuance of total disability. The St. Louis Court of Appeals in Steck v. American National Assur. Co., 86 S.W.2d 113, followed our decision in the Laupheimer case, supra, and pointed out the distinction between the obligations created by the terms of the rider under consideration, and those of a different character. This court, speaking through TRIMBLE, J., in Thomas v. Metropolitan Life Insurance Company, 89 S.W.2d 590, 593, discussed the terms of a rider attached to a policy issued by this defendant, the terms of said rider being practically identical with those of the rider here considered. We there held, in unequivocal language, that defendant was liable for payment of the benefits mentioned in said rider because the term "permanently," as used therein, did not "mean forever thereafter during insured's life." We applied and followed our ruling in the Thomas case, supra, in Berkis v. Metropolitan Life Insurance Company, our docket No. 19627, in an opinion handed down April 29, 1940, not yet published. That case, on the point herein considered, is on all fours with the case at bar. We adhere to the doctrine announced in the preceding cases and rule the point against defendant.
Defendant's next point is that the furnishing of due proof of loss is a condition precedent to plaintiff's right of recovery and, no proof of loss having been furnished until more than six months after total disability ended, plaintiff cannot recover under the terms of the rider as above quoted. To support its contention it cites Clinton v. Metropolitan Life Insurance Company, 94 S.W.2d 1080; Sapaw v. Metropolitan Life Insurance Company, 94 S.W.2d 1082; and Anderson v. Metropolitan Life Insurance Company, 96 S.W.2d 631.
In the Clinton case, supra, l.c. 1081, The St. Louis Court of Appeals stated that the terms of the rider specifically postponed "the commencement of the payment of the monthly installments called for by the policy for a period of six months after the receipt of due proof of disability. . . ." (Italics ours.) That court ruled to the same effect on a similar provision in the Sapaw and Anderson cases, supra.
Defendant also cites other cases which we shall notice briefly. Young v. Metropolitan Life Ins. Co., 84 S.W.2d 1065, a decision by the Springfield Court of Appeals, does not pass on the question except vaguely and by inference, and then only by dictum. There is no language in Shepard v. Metropolitan Life Insurance Company, 99 S.W.2d 144, a decision by this court, that applies to the situation here considered. The two cases are materially different. In White v. Metropolitan Life Insurance Company, 107 S.W.2d 957, it was held that where the policy provided for commencement of payment of disability benefits six months after proof of disability was furnished, the suit was not premature when brought prior to expiration of six months where insurer had denied liability. To the same effect is the ruling in Meadows v. Metropolitan Life Insurance Company, 104 S.W.2d 788. The case of Chapman v. Metropolitan Life Insurance Company, 132 S.W.2d 1096, cited by defendant in support of this point, is, in reality, an authority against defendant's position. It cites, with approval, the opinion of Corcoran v. Metropolitan Life Insurance Company, 93 S.W.2d 1027, (St. Louis), wherein it was ruled that denial of liability on a stated ground, other than that of failure to furnish due proof of loss, amounts to a waiver of proofs and defects therein.
Reference to the letters from defendant to plaintiff, as quoted in our statement of the facts, discloses that defendant denied liability for the stated reason that plaintiff was not "totally and permanently" disabled within the meaning of the rider. This was held to be a waiver of proofs of loss and defects therein. [Corcoran v. Metropolitan Life Ins. Co., supra, 1029.] This court held, Laupheimer v. Northwestern Mutual Life Insurance Company, 24 S.W.2d 1062, 1064, as follows:
". . . that the denial of liability by defendant on the sole ground that plaintiff's disability did not come within the provisions of the policy, because plaintiff had recovered and his disability was not permanent, constituted a waiver of alleged failure to furnish proof of disability, regardless of whether the denial of liability occurred before or after the time when proofs were due."
To the same effect see Ash-Grove Lime Portland Cement Company v. Southern Surety Company, 39 S.W.2d 434, 441. We held in a case previously decided during this term that denial of liability on the specified grounds that the rider did not cover loss except for "permanent total" disability, amounted to a waiver of due proof. [Berkis v. Metropolitan Life Insurance Company, supra.] In that case suit was brought long after the disability ended; and recovery was permitted, both for the benefit payments accruing and for premiums paid, during the entire period of disability suffered. Such premiums payments and disability benefits went back to a date more than six months prior to any claimed offer of plaintiff to make proof of loss. The contention of defendant, in the last mentioned case, in connection with the point here under discussion, was identical with that here urged. We rule that defendant waived the furnishing of due proof of disability.
The language of the rider, in the first paragraph here considered, specifically and unequivocally provides for waiver of premiums and payment of disability benefits during the entire period of total disability (if such total disability continues for more than three months). The second paragraph thereof also specifically provides that benefit payments shall begin as of the date of the commencement of such disability; and that waiver of premiums shall begin on the anniversary of the policy next succeeding the date of commencement of such disability. Said paragraph then provides that in no event shall such waiver take effect, or payment of benefits begin, as of a date more than six months prior to the date of receipt of due proof of liability. The effect of the second paragraph is to modify the provisions of the first. A portion of the second paragraph is ambiguous, when considered together with other provisions of the rider; but we think the provision of the rider providing that waiver of premiums "shall begin as of the anniversary of said policy next succeeding the date of the commencement of such disability" is clear and that it, when considered with other provisions, creates no ambiguity. It should be enforced.
Waiver of premiums, therefore, did not begin until March 1, 1935, and covered premiums falling due for the months of March, April, May, June and July, at the rate of $2.57 per month, or a total sum of $13.85. The court erroneously included in the judgment the entire sum paid by plaintiff, as premiums, from the beginning of his disability, or the total sum of $35.78. The judgment is excessive in the amount of $21.93.
If plaintiff shall make remittitur of the sum of $21.93 on said judgment within ten days after this opinion is handed down, the judgment is affirmed; otherwise said judgment is reversed and the cause is remanded. Campbell, C., concurs.
The foregoing opinion of SPERRY, C., is adopted as the opinion of the court. If plaintiff shall make remittitur of the sum of $21.93, on said judgment within ten days after this opinion is handed down, the judgment is affirmed; otherwise said judgment is reversed and the cause is remanded. All concur.