Opinion
28150.
DECIDED JULY 31, 1940.
Complaint on disability policy; from Elbert superior court — Judge Edwards. November 2, 1939. (Application to Supreme Court for certiorari.)
Joseph B. McGinty, for plaintiff.
Howard B. Payne, William F. Buchanan, for defendant.
Under the construction of the policy, the right of the insured to mature the policy under the endowment provisions and recover for disability caused by permanent insanity is not limited by the provision in the policy that "no benefits will be paid for disability resulting from venereal diseases."
DECIDED JULY 31, 1940.
Suit was filed in a justice's court on behalf of Lewis A. Rucker, by his mother, Lizzie Rucker, as next friend, against the National Life and Accident Insurance Company, in which a recovery was sought on an insurance policy because of the permanent insanity of the insured, Lewis A. Rucker. It was alleged that on April 20, 1936, the defendant issued to Lewis A. Rucker a life-insurance and endowment policy, a copy of which is attached to the petition, and which provides, among other things, that "in consideration of the payment in advance of the above premium . . the National Life Accident Insurance Company will pay as provided herein to the insured, on the anniversary of this policy next after the insured shall have passed the age of sixty-nine years, the amount of endowment insurance above named, and, in the event of disability from illness or accident, will pay weekly the benefit scheduled above as provided herein and according to the terms hereof. . . Should the insured hereunder become insane, disability therefrom for a period not in excess of ten weeks will be considered and paid as if from illness; provided, that not more than ten weekly claims from insanity will be paid during the continuance of the policy; however, upon receipt by the company of due proof that the insured hereunder is permanently insane, this policy shall thereupon mature, and the company shall be liable only for the amount of endowment insurance provided above." It was further alleged that about May 5, 1938, the insured became permanently insane, and was so adjudged by the court of ordinary of Elbert County, and committed to the state insane asylum, where he has since been confined; that shortly thereafter, Lizzie Rucker, requested claim blanks of the defendant, and on receipt thereof made proof to the defendant of the insured's permanent insanity, "which fact, under the terms of the policy . . matured the death or endowment benefit automatically," for which the defendant is indebted to the plaintiff.
The defendant filed its answer and admitted the insanity of the insured, but denied liability under the policy, and denied that the full and complete policy was attached to the petition. It was further alleged that the disability of the insured, if any, was the result of venereal disease, that venereal disease was the cause of his alleged disability and insanity, and that under the terms of the policy there was no liability on the defendant therefor.
On the trial the uncontradicted evidence showed that the insured became insane, was so adjudged by the Elbert County court of ordinary, was committed to the State insane asylum at Milledgeville, and is now permanently insane with very little hope for a recovery; and that the insanity was the result of paresis caused by syphilis, a venereal disease. The policy was introduced in evidence. It showed, in addition to the provisions quoted above, that one of the conditions on which it was issued was as follows: "5. The insured shall not be entitled to any benefits for sickness or accident under this policy, unless a certificate on the company's form by a regular licensed and practicing physician, who is satisfactory to the company, showing the nature of the sickness or injury, shall first be furnished the company or its authorized agents; and if the sickness or accidental disability of the insured shall continue for more than one week, a like certificate must be likewise furnished at the beginning of each week of sickness or accidental disability. No benefits will be paid for disability resulting from venereal diseases."
The court directed a verdict for the defendant. A new trial was denied, and the plaintiff excepted.
The policy was denominated an endowment policy. It provided that on the insured's reaching a certain age the company would pay the amount of "endowment insurance" named in the policy, and further provided that "in the event of disability from illness or accident" the company would pay to the insured the weekly benefits scheduled therein. It affirmatively appeared from the uncontradicted evidence that the insured had become permanently insane. The policy provided that should the insured become insane and disability therefrom not exceed ten weeks, the company would pay weekly disability benefits as if the insured were disabled from illness, which payments would not exceed ten weeks; and that on receipt by the company of due proof that the insured was permanently insane, the "policy shall thereupon mature, and the company shall be liable only for the amount of endowment insurance provided above." This suit is based on the insured's permanent insanity, and is to recover the amount of the endowment insurance as provided in the policy. In the paragraph numbered 5 under the heading "conditions" appearing in the policy, after providing that the insured would not be entitled to any benefits for sickness or accident unless a satisfactory physician's certificate was furnished, it was provided that "no benefits will be paid for disability resulting from venereal diseases." Nowhere else in the policy is there any provision relieving the insurer from liability under the policy for insanity or disability resulting from venereal diseases. This provision in the policy is in paragraph 5, which provides that the insurer is not liable to pay benefits for sickness or accident unless a proper medical certificate is furnished, and specifically states that "no benefits will be paid for disability resulting from venereal diseases." Plainly this has reference to weekly benefits. While weekly benefits are payable under the policy for temporary insanity not in excess of ten weeks, the policy specifically provides that if the insured becomes permanently insane, the company is not liable for any weekly benefits, but is liable only for the "endowment insurance" as provided in the policy. Construing the provisions of this policy in their entirety, including the provisions of paragraph 5, most favorably to the insured, it is our opinion that the words in such paragraph, that "no benefits will be paid for disability resulting from venereal diseases," have reference to the payment of weekly benefits for sickness or accident, and have no reference to the payment of the amount of the "endowment insurance" specified in the policy, which is payable under the policy on the insured's reaching a stated age, or upon his death, or upon his becoming permanently insane. It follows that although the evidence was undisputed that the insured's permanent insanity was the result of paresis, which was caused by a venereal disease, namely syphilis, it was error to direct the verdict for the defendant. The court erred in overruling the motion for new trial.
Judgment reversed. Sutton and Felton, JJ., concur.