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District Court of Appeal, First District, Division 1, California.


Civ. 8467.

Decided: January 24, 1934

A. B. Weiler, of San Francisco (Niles C. Cunningham and Glensor, Clewe, Schofield & Van Dine, all of San Francisco, of counsel), for appellant. Newlin & Ashburn, of Los Angeles, and McCutchen, Olney, Mannon & Greene and F. Eldred Boland, all of San Francisco, amici curiæ for appellant. Samuel M. Samter and J. J. Posner, both of San Francisco, for respondent. Stanley F. Davie, of San Francisco, and Eugene K. Sturgis, of Oakland, amici curiæ for respondent.

A rehearing was granted in this cause in order to give further consideration to the question of the trial court's power to enter judgment for the payment of future monthly installments of insurance benefits which the trial court held were due under the so–called permanent disability clause of the insurance policy sued upon; and, after having done so, we are satisfied that, except as to the matter of the modification of the terms of the judgment as hereinafter ordered, the following opinion, written by the late Judge Strother while sitting as justice pro tem. of this court and heretofore filed herein, correctly disposes of the points involved on the appeal:

Action upon a policy of indemnity insurance.

The first count in the complaint is for the recovery of the sum of $400 unpaid installments on an accident insurance policy issued by appellant to respondent, and such installments as might fall due pending trial of the action. The contract is set out and made part of the complaint. The second count includes by reference all the allegations of the first count, and in addition alleges that a controversy had arisen as to the rights of plaintiff under the contract.

The defendant demurred generally and specifically, among other objections raising the question of the jurisdiction of the court and the failure of plaintiff to specify any particulars of the alleged controversy as to plaintiff's rights. The demurrer was overruled and defendant answered, admitting the execution of the contract, proof of loss, and the payment by it of five monthly installments, provided for by the contract; denying the injuries to plaintiff, and denying that any controversy existed as to the rights of the parties. As a special defense, defendant alleged that plaintiff had not been and would not be continuously under the care of a physician as provided in the policy.

Appellant asserts upon this appeal that the superior court of the city and county of San Francisco was without jurisdiction of the action to recover the sum alleged to be due on the contract, actions for that amount being within the exclusive jurisdiction of the municipal court, and that, no specification of controversy having been stated in the second count of the complaint, judgment should have gone in its favor. Assuming, without deciding, that its position was correct in the inception of the action, respondent waived the objection by answering and setting up as a special defense a matter of controversy in the construction of the contract. The common–law rule still obtains that a defect in a pleading is cured by a subsequent pleading of the omitted matter by the other party. The superior court having exclusive jurisdiction of actions brought under section 1060, Code of Civil Procedure, properly retained the action. The court is authorized by the section to determine the rights of the parties and grant “other relief.”

The other grounds of error urged by appellant are that the findings and judgment are not supported by the evidence, and that “the judgment itself is not of the character contemplated by the law of this state.”

The first objection to the evidence is that plaintiff made a material misrepresentation in answers to questions as to his occupation. He stated that he was a “rigger” by occupation. The answer to the next question was: “The duties of all my occupations are stated in full as operating hoist machine.” The definition of “rigger” as given in dictionaries, and testified to by a witness, includes not only the operation of hoist but putting up, mantling, and dismantling of rigging––that is, steel lines and cables––and the erecting of derricks and hoists.

Defendant's attorney testified that there was a classification of nonacceptable occupations, under a rule of the company, which included work required to be done in the air. It was not, however, shown that this rule was ever brought to the knowledge of plaintiff. The policy itself sets forth that the insurer will not be liable for sickness resulting from certain diseases, or injuries suffered in named occupations, which do not include that in which plaintiff was engaged. The policy contains the further provision that “no reduction shall be made in any indemnity herein provided by reason of change in the occupation of the Insured or by reason of his doing any act or thing pertaining to any other occupation.” (Italics ours.) In fact, plaintiff was not, before or at the time of receiving his injuries, engaged in work which took him off the ground. The trial court did not err in finding that there was no misrepresentation.

The defendant by its contract expressly agreed that if the injury should “wholly and continuously disable the Insured from performing any and every kind of duty pertaining to his occupation,” that it would pay him the indemnity during his life. The contention of the appellant is that the evidence does not sustain the finding of total disability by the court. The plaintiff suffered displacement of one shoulder joint, with the result that the arm would drop out of the socket even without exertion. Several operations were performed to remedy the condition, but without success. While there was some slight conflict in the expert surgical testimony, the overwhelming weight of it was to the effect that the condition was irremediable. The testimony of an expert in the occupation, that the performance of its duties required great strength, and the ability to use both hands, whether it be considered as that of a “rigger” in the general sense, or limited to the operation of a hoisting machine, was uncontroverted.

The court rendered a present judgment for the amount of the indemnity installments due at the time of the trial, and further requiring the defendant to pay at the same rate during the life of the plaintiff. The finding was in exact conformity with the great weight of the evidence, and the judgment in exact conformity with the agreement of appellant, assuming that respondent's disability will continue for the rest of his life, as found by the court.

Has the court jurisdiction to render judgment requiring the payment of future installments in a case such as this? We can find no ground in reason or precedent against it. In actions for damages for breach of continuing contracts, courts estimate and give judgment for damages that are certain to accrue in the future. In actions for damages for personal injuries, if the injuries are found to be permanent, judgment is given in an amount to recover the loss of the injured party for his natural life, estimated according to the mortality tables. It is true that courts have refused, where action has been brought for installments due on a contract calling also for future installment payments, to give judgment, when there is no accelerating clause, for the payments in the future. But we are satisfied that the reason and distinction is that in such contracts there are mutual and concurrent covenants or agreements, express or implied by law, failure to comply with which by the plaintiff might, in the future, avoid the contract as to the defendant. But here the only condition as to the payment of the indemnity was within the issues and determined, and there is no reason why the plaintiff should be remitted to another action in case of defendant's failure to pay in the future.

The clause of the policy upon which the portion of the judgment relating to future payments is founded provides that: “If ‘such injury’ shall not result in any of the specific losses enumerated in Section A, but shall wholly and continuously disable the Insured from performing any and every kind of duty pertaining to his occupation for one day or more, so long as the Insured lives and suffers total loss of time, the Company will pay a monthly indemnity at the rate of One Hundred ($100) Dollars.” The finding of the court upon this issue was: “That on or about the 31st day of August, 1929, plaintiff, at Valley Springs, California, suffered permanent accidental bodily injuries effected directly and independently of all other causes, which said bodily injuries so sustained as aforesaid consisted of the permanent dislocation of plaintiff's right acromio–clavicular joint; that such permanent bodily injuries sustained as aforesaid have ever since August 31st, 1929, wholly and continuously disabled said plaintiff and for all time will wholly and continuously disable plaintiff from performing any and every kind of duty pertaining to his occupation, which said occupation at all times herein mentioned was a rigger;” and its conclusion of law was: “That the said bodily injuries suffered by plaintiff and in said complaint particularly set forth were and will be permanent and have wholly and continuously disabled plaintiff and for all time will wholly and continuously disable plaintiff from performing any and every kind of duty pertaining to his occupation as rigger.” A similar adjudication was incorporated in the judgment, which then proceeded to adjudge and decree that “plaintiff have and recover from defendant the sum of one hundred ($100.00) dollars per month commencing with the month of March, 1931, during the rest and remainder of plaintiff's natural life.”

On petition for rehearing it was urged that, in view of the condition contained in the clause of the policy above quoted, the insurer had the right to be relieved from payment of future permanent disability indemnity if such permanent disability ceased to exist; that this right carried with it the privilege of establishing or seeking to establish subsequent to the entry of judgment the fact that plaintiff's physical condition had so changed or improved as to take his case out of the operation of said so–called permanent disability clause; but that the form of judgment entered forever precluded the insurer from exercising such right. That such right exists seems clear from the wording of said clause, and therefore, in order to avoid any possible ambiguity which might arise on this point, it is ordered that the judgment be, and the same is hereby, modified by adding to the provision last above quoted the following: “Provided that this provision of the judgment shall be subject to modification by the court if hereafter it shall be established by competent evidence, and so found by the court on motion of defendant, that on account of subsequent change or improvement in plaintiff's physical condition the injuries suffered by him and in said findings and judgment particularly described have ceased to be permanent and no longer wholly and continuously disable him from performing any and every kind of duty pertaining to his occupation as rigger.”

The trial court is directed, therefore, to revise its judgment accordingly; and, as thus revised and modified, it will stand affirmed, respondent to recover his costs of appeal.