Majority
J. — This action was instituted by Charles E. Fohl, guardian of the person and estate of William E. Fohl, an incompetent, to recover total and permanent disability benefits under a limited payment life policy and under a group policy of insurance, both issued by defendant Metropolitan Life Insurance Company upon the life of said incompetent. In addition thereto, the plaintiff guardian seeks to recover damages allegedly resulting to him personally by reason of the cancellation of the group policy.
Trial before the court sitting without a jury resulted in a judgment for defendant insurance company, from which plaintiff prosecutes this appeal.
Epitomized, the facts are that on December 21, 1921, defendant issued a limited payment life policy in the face amount of $1,500 to William E. Fohl in consideration of the payment of semi-annual premiums in the amount of $24.90. Concurrently with the issuance of the just mentioned policy, and in consideration of the payment of an additional semiannual premium of $2.67, defendant insurance company issued to William E, Fohl a supplemental insurance agree
It appears from the record that on June 15, 1939, the semi-annual premium on the limited payment life policy then due remained unpaid, and by reason of such nonpayment of premium this policy lapsed on July 17, 1939, at which time it had a paid-up value of $1,254, and at the time of the trial the policy was in effect as paid-up insurance in that amount.
The policy of group insurance involved in this litigation was issued by defendant insurance company to the Southern Pacific Company on December 31, 1923. On January 1, 1930, William E. Fohl, being at that time employed by the Southern Pacific Company, received a serial certificate issued to him evidencing his coverage under the group insurance policy in the sum of $250, which coverage was increased to $1,500 on July 1, 1930. The provisions of this group insurance policy relating to total and permanent disability will be hereinafter set forth. William E. Fohl’s employment with the Southern Pacific Company terminated on December 23, 1930, and the insurance company canceled the provisions of such policy so far as William E. Fohl was concerned.
By the first cause of action of his complaint and amended complaint, plaintiff alleged the issuance of the limited payment life policy and the supplemental agreement relating to total and permanent disability, and charged that from December 23, 1930, to January 1, 1930 (sic), William E. Fohl was totally and permanently disabled; that he was intermittently totally and permanently disabled from January 1, 1930, to December 23, 1930, from and after which date he has been
The second cause of action alleged the issuance of the group policy of insurance to the Southern Pacific Company and the issuance of a serial certificate thereunder evidencing coverage of William E. Fohl on January 1, 1930; that the latter became totally and permanently disabled on December 23, 1930; that notwithstanding due proof of such disability was furnished defendant insurance company, the latter refused to pay disability benefits allegedly due in the amount of $1,542.50. Plaintiff guardian further alleged that he did not discover the existence of this policy until 1938.
By his third cause of action plaintiff alleged that he did not learn of the terms of the group policy until July, 1940; that the group insurance policy contained certain provisions not contained in the serial certificate; that no notice was given to the guardian of the termination of- the employment of William E. Fohl; that the cancellation of the serial certificate on December 23, 1930, deprived plaintiff guardian of the privilege of converting said coverage, as provided in the group policy, whereby he was damaged in the sum of $1,500; the amount of such policy.
By its answer defendant insurance company admitted the issuance of the limited payment life policy, the group policy of insurance, and the serial certificate issued thereunder, but denied generally and specifically all other allegations of the complaint, including the allegations that William E. Fohl was disabled and that certain proofs of disability were made and filed. By way of separate and affirmative defenses it was alleged in the answer:
First: That the alleged total and permanent disability from which plaintiff claimed to be suffering was the result of disease occurring or originating prior to the issuance of the limited payment life policy, and hence was not a risk insured against by the supplemental agreement.
Second: That no due, or any, proof of the alleged total and permanent disability of William E. Fohl was received
by defendant until January 10, 1939, and that by virtue of the terms of said supplemental agreement no disability payments were due or payable until six months after the date of receipt of said proof of alleged disability.
Third: That the cause of the alleged disability did not occur while William E. Fohl was insured under the group policy and serial certificate issued thereunder.
Fourth: That William E. Fohl did not become totally and permanently disabled while he was insured under the said serial certificate.
Fifth: That William E. Fohl and Charles E. Fohl, his guardian, were fully aware of the facts surrounding the alleged disability from and after 1930, and that the failure to file due proof of said alleged disability until 1938 constituted an unreasonable delay, as a result of which defendant has been seriously prejudiced in its defense in the within action, wherefore plaintiff and William E. Fohl are and each of them has been guilty of laches.
Sixth: That plaintiff and William E. Fohl are and each of them has been guilty of laches and unreasonable delay by reason of having failed to file proofs of the alleged disability under the group policy and serial certificate issued thereunder, in that they failed to file said proofs until 1939 although fully aware of all the pertinent facts relating to said alleged disability as early as 1930.
During the progress of the trial defendant insurance company moved the court for permission to file an amendment to its answer wherein it alleged by way of further affirmative defense that plaintiff’s action herein was barred by the statute of limitations. (Code Civ. Proc., § 337, subd. 1.) The court permitted the amendment to be filed, but refused to make any findings upon the issue thereby tendered.
Stating the evidence, as we are required to do, in the light most favorable to the judgment rendered, we find testimony that prior to the issuance of the limited payment life policy on December 15, 1921, William E. Fohl had been employed as a driver with a bakery concern in the city of Stockton, and to all appearances enjoyed good health. However, on February 21, 1920, nearly two years prior to the issuance of the policy, William E. Fohl was received as a patient at the Clark Sanitarium in Stockton, this being an institution for the care and treatment of mental, nervous, drug and alcoholic patients, where he remained until March 22 of the same
From 1920 to 1928 the incompetent continued his work as a trucker and freight handler, although it should be stated that his relatives noted a vast difference in his ability to think and remember things as compared with his capacities in this regard prior to 1920. In October, 1928, he came to Los Angeles and resided in the home of plaintiff guardian. The latter was operating a store, where he asked William E. Fohl to assist him, but found that said ward could not concentrate on his work, was unable to make proper change, and was “generally dull.” In December, 1928, while at the home of the guardian, the incompetent experienced a seizure, which rendered him unconscious. He was hospitalized in a sanitarium in Los Angeles County, where he remained until June, 1929. During portions of this time he was unable to
The record indicates that following the appointment of a guardian, the ward, William E. Fohl, continued to improve, and that on or about June 28, 1929, he entered the employ of Southern Pacific Company in San Francisco as a trucker. On January 1, 1930, the group policy hereinbefore referred to was issued. The incompetent continued in the employ of the Southern Pacific Company until September 10, 1930, when he was hospitalized for a surgical operation to remove an ulcer. During this surgery a blood Wasserman was taken, which showed a negative reaction. During his convalescence and post-operation period the incompetent suffered two epileptic seizures, diagnosed as “petit mal”, and upon his discharge from the hospital on October 27, 1930, he was released by the company physicians for work effective January 1, 1931. However, during the Christmas rush of railroad business he was recalled to duty by the railroad company and continued in such employment from December 2 to December 23, 1930, at which time he left the railroad service and
It is first contended by appellant that the disabling clause within the meaning of the disability clause of the policy issued upon the life of William E. Fohl originated and occurred in December, 1928, and within the meaning of the policy became permanent in September, 1930. It is conceded that the right of the insured to recover is dependent upon the definition and interpretation of the words “occurring and originating”, as such words appear in the disability supplemental agreement issued by the defendant insurance company and hereinbefore set forth. In other words, the monthly disability payments by defendant insurance company were due the insured when his disability ensued “as a result of injury or disease occurring or originating after the issuance of the policy.” Upon this issue the trial court found “. . . that the said William E. Fohl is at the present time and at all times since June 23, 1931, the date of his commitment to Napa State Hospital, has been, totally and permanently disabled so as to be unable to perform any work or engage in any business for compensation or profit, but that said disability is not the result of an injury or disease which occurred and originated after the issuance of said policy of insurance No. 5025602-3-40. In this connection, the court further finds that said total and permanent disability from which the said William E. Fohl is suffering as aforesaid is the result of a disease or diseases, to-wit: syphilis and syphilitic meningitis, which occurred and originated dur
It is urged by appellant that the evidence introduced by respondent upon which the aforesaid finding was predicated, and which testimony was received in support of defendant insurance company’s denial of appellant’s first and second causes of action and in support of respondent’s first, third, fourth and fifth affirmative defenses, was inadmissible, and that the objection of plaintiff thereto should have been sustained. We are not in accord with this claim. It is true that the life insurance policy contained a clause that it should be incontestable two years from and after the date of its issuance, while the group insurance policy which is the subject of the second cause of action contained a similar provision limiting the contestable period to one year after issuance date. However, we are not here concerned with a case where the defendant insurance company by its proffered evidence seeks to raise any issue of fraud or other deception on the part of the insured in the procurement of the policy. The testimony was relevant and material to show, as contended by defendant, that by reason of the provisions contained in the supplemental agreement, the disability suffered by the insured was not a risk assumed by the insurer for the reason that it resulted from disease occurring or originating prior to the issuance of the policy, whereas the coverage thereunder extended only to disability resulting from disease occurring and originating after the policy was issued. In the instant litigation the coverage of the policy was not extended beyond the terms of the policy, nor did such clause relieve plaintiff from the burden of proving that the disease from which he claimed to be suffering originated and occurred after the execution of the insurance agreement. Such being the case, it follows that defendant insurance company was entitled to rebut this claim by presenting evidence to prove that the disease causing disability had its inception and origin prior to the date the policy was issued. (Cohen v. Metropolitan Life Ins. Co., 32 Cal. App. (2d) 337 , 346 [ 89 P. (2d) 732 ].) The ruling of the trial court admitting the challenged evidence was proper and correct.
On the question of whether the disability of the insured was the result of injury or disease occurring and originating
But though we assume that the epilepsy was caused by syphilitic infection, the question arises as to whether the cause was the original infection in 1920, prior to the issuance of the policy, or the subsequent reinfection in 1931. Though the insured suffered from syphilis in 1920, he nevertheless continued to work, and was gainfully employed until stricken with his first violent attack of epilepsy in December, 1928. In other words, the disease which caused the insured’s disability first became manifest or active in 1928, although he was again able to work from June, 1929, until 1930, when he became violent and his condition so bad that it was necessary to confine him in June, 1931. From September, 1930, he was unable to work except for a three-week period in December of that year. Whatever may have been the insured’s condition prior to and at the time of the issuance of the policy, it was certainly, according to the evidence, a latent condition which failed to manifest itself so far as disability was concerned for some eight years after the issuance of the policy. As was said in Reiser v. Metropolitan Life Ins. Co., 262 App. Div. 171 , [ 28 N. Y. S. (2d) 283 ], “A disease
In Metropolitan Life Ins. Co. v. Reynolds, (1936) 48 Ariz. 205 [ 60 P. (2d) 1070 ], the court had under consideration a policy containing, as does the one before us, the provision that the insured was entitled to benefits “as the result of bodily injury or disease occurring and originating after the issuance of said policy.” The evidence in the case just cited concededly showed that the general paralysis from which the plaintiff suffered was caused by syphilis. In affirming an instructed verdict for plaintiff, the court said:
‘ ‘ The disabling disease with which the insured was afflicted was insanity. The insured had been able to work and earn money thereby right along until 1934, nine years after the policies were issued. Defendant contends, however, that because the insured’s insanity was the result of syphilis, with which he was afflicted when the policies were issued, his disability was not covered. If the syphilis was the disabling disease, defendant would be right, but the evidence shows that it was not. The disabling disease occurred and originated nine years after the policies were issued. The medical
or pathological cause of the insanity may have been the syphilis, but that would not relieve the defendant from liability. . . .” (Italics added.)
So, in the case at bar, the medical or pathological cause of the incompetent’s brain lesion, psychosis, epilepsy, or insanity, may well have been the syphilis and syphilitic meningitis from which he suffered prior to the issuance of the policy, but that does not relieve the defendant insurance company from liability where, as here, the disabling disease did not manifest itself for some eight years after the policy was issued.
We come now to a consideration of plaintiff’s right to recover under the terms of the group policy issued to Southern Pacific Company and the certificate issued thereunder to the insured plaintiff. In this regard the group policy provides as follows:
“8. Total and Permanent Disability.—
“Upon receipt at the Home Office in the City of New York, of due proof that any Employee, not working in Mexico, while insured hereunder, and prior to his sixtieth birthday, has become totally and permanently disabled, as the result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, the Company will, in lieu of the payment at death of the insurance on the life of the said Employee, as herein provided, pay equal monthly installments as hereinafter described to the said Employee, or to a person designated by him for that purpose. . . . The first monthly installment will be paid upon receipt of due proof of total and permanent disability, in which event the insurance hereinbefore provided under this policy, on the life of said Employee, shall cease to be in force and no further premiums will be payable on account thereof.”
With reference to its termination, the group policy states: “. . . Upon termination of employment, the insurance of any discontinued Employee under the Policy automatically and immediately terminates as of the last day of the insurance month during which termination of employment occurred, and the Company shall be released from any further liability of any kind on account of such person unless an individual policy is issued in accordance with the above provision.” .
Manifestly, the provisions of the group policy clearly
The trial court’s findings numbered XIII and XIY, to the effect that plaintiff was not totally and permanently disabled while insured under the group policy, are therefore amply supported by substantial evidence, and must be upheld.
Finally, respondent urges that appellant is precluded from recovery under the limited payment life policy and the group policy as well because of the asserted unreasonable delay in furnishing defendant insurance company with due proof of disability. In this connection, it becomes unnecessary to discuss the claim so far as the group policy is concerned, because as heretofore indicated, we have held upon other grounds that the insured is not entitled to recover disability payments under such policy. As to the limited payment life policy, we are persuaded that respondent’s claim cannot be sustained. No attack is leveled at the sufficiency of the evidence to substantiate and support the findings of the trial court that “it is true that during the month of January, 1929, or shortly thereafter, defendant was notified by plaintiff’s attorney, Mr. G. P. Yon Herzen, that the said William E. Fohl had been adjudged incompetent by the Superior Court of the State of California, in and for the County of Los Angeles, and that plaintiff had been appointed as guardian of the said William E. Fohl. It is also true that defendant, through its duly authorized representatives and agents, refused to recognize the claim which was asserted by plaintiff, as guardian of the said William E. Fohl, during the year 1929 for the disability benefits under policy of insurance No. 5025602-3-4C, and in this connection the court finds that said refusal to recognize said claim was based upon the fact that any disability which allegedly existed at that time was the result of a disease occurring and originating before the issuance of said policy of insurance. ’ ’
At no time during the negotiations between the parties, extending from 1929 to 1938, did the insurance company request or demand any further or different proof than that
For the foregoing reasons, the judgment is reversed, and the cause remanded with directions to the court below to enter judgment for plaintiff in the amount of the disability payments accruing under the supplemental agreement issued pursuant to the limited payment life policy from June 23, 1931, and for the return to plaintiff by defendant insurance company of. all premiums paid on said policy on and subsequent to June 15, 1931.
York, P. J., concurred in the judgment.
Doran, J., dissented.
A petition for a rehearing was denied October 9, 1942. Doran, J., voted for a rehearing.
Respondent’s petition for a hearing by the Supreme Court was denied November 9, 1942. Gibson, C. J., and Edmonds, J., voted for a hearing.