ERRECA v. WESTERN STATES LIFE INS CO ET AL (1941)

The defendants, Western States Life Insurance Co. and California–Western States Life Insurance Co., have appealed from a judgment of $2,300 which was rendered against them on account of compensation for “total and permanent disability” of the plaintiff, under the provisions of a life insurance policy held by him. It is contended the findings and judgment are not supported by the evidence for the reason that the plaintiff is not entirely and permanently disabled from performing all remunerative work as that term is defined in the policy.

June 16, 1923, the plaintiff was insured with the Western States Life Insurance Company, for $10,000, upon which policy he paid premiums of $240.30 per year for fifteen years. The obligations of the policy were assumed by California–Western States Life Insurance Company. The contract provides that if the insured becomes “totally and permanently disabled” prior to his sixtieth birthday, the company will pay the insured $200 a month for one year, and the sum of $100 per month thereafter during his disability. It is also provided that all premiums due on the policy after receipt of proof of the disability of the insured will be waived.

Those portions of the disability clause of the policy which are involved on this appeal read as follows:

“Disability benefits shall be effective upon receipt of due proof * * * before default in the payment of premium, that the insured became totally and permanently disabled subsequent to the delivery hereof and before the policy anniversary nearest his sixtieth birthday.

“Disability shall be deemed to be total whenever the insured becomes wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation, or performing any work whatsoever for remuneration or profit, and under this contract disability shall be presumed to be permanent when it is present and after the insured has been continuously so disabled for not less than three months. * * *

“Waiver of Premium Commencing with the anniversary of the policy next succeeding the receipt of such proof, the company on each anniversary will waive payment of the premium for the ensuing policy year. * * *

“If it appears that the insured is no longer wholly disabled as aforesaid, no further premiums shall be waived nor income payments made.”

The plaintiff was insured as a “farmer”. During all of his active years he was engaged in grain and stock farming. At and prior to the time of the accident which caused his disability, the plaintiff leased and personally operated six ranches in Merced county containing an aggregate area of 7,000 acres. One ranch was located at Chowchilla. It was a dairy farm operated by the plaintiff in partnership with another man, with whom he shared the profits and losses equally. All of the other farms were grain ranches. While there is some conflict of evidence, it appears that the plaintiff was an unusually active man who personally managed, superintended and operated his several ranches. He was nearly fifty–eight years of age when the accident occurred. He then weighed two hundred pounds. He was in excellent physical condition and in good health. He was trained for no other occupation than that of a farmer. He was accustomed to ride horseback over his several ranches to see that the farm work was properly performed. Sometimes he traveled to the more remote ranches in an automobile. He personally supervised all work of various kinds upon all of the farms. He determined when and how the discing, plowing, harrowing, planting, cultivation, irrigation, and harvesting should be done. He personally assisted in the performance of much of that work when his aid was required. He inspected the land and tested the soil to determine the quantity of moisture present and he designated the location of particular crops. He directed and helped to construct levees and ditches for irrigation purposes. He purchased, overhauled and sometimes repaired machinery used on the land. He repaired fences and buildings. He often drove tractors, plows and other farm machinery. He bought the seed and feed for stock and marketed the products of the soil. In fact, he was the sole manager of all the details of each of the several farms, except the dairy ranch which his partner operated with his aid.

February 2, 1938, the plaintiff was thrown from a horse and his right leg was broken at the knee. The tendons of that leg were also seriously impaired. That accident required him to remain in a hospital for two months. He was thereafter forced to go about on crutches for several weeks. He then moved about with difficulty by the use of a cane. He never regained the entire use of his right leg. His weight increased to 235 pounds. He can now walk only with the use of a cane. He can stand on his feet for brief periods only of about twenty minutes at a time. He cannot now ride a horse. The circulation in his limbs is permanently obstructed. He testified that the right leg “is dead, half–way dead”. Soon after the accident occurred the plaintiff suffered a pulmonary embolism from a clot in the lung. He was afflicted with chronic varicose veins resulting in numerous abscesses. There were open lesions and ruptured varicose ulcers on his limbs. He was required to keep his lower legs constantly bandaged. He was confined to the house and sometimes to his bed because of his afflictions. He was utterly incapacitated from performing any substantial part of his former duties in managing and conducting his farming enterprises. In reply to specific interrogatories regarding his ability to perform his former ordinary farm work, he emphatically asserted that he was utterly unable to carry on the management of the farms or to personally perform any of the duties incident thereto. Summing up his disability as the result of his afflictions, Doctor Leroy R. Hillyer testified that, “I would say that he would certainly not be able to perform any manual labor on the farm”.

As a result of plaintiff's disability he was compelled to and did abandon his management, control and personal assistance in farming his several tracts of land. He employed his son John, who was then twenty–nine years of age, and who had been formerly working for him on one of the farms, as manager and overseer of the ranches. It is true that his son sometimes conferred with him regarding certain transactions incident to the operation of the farms. But the son assumed the entire management and control of the farming enterprise. On cross–examination the plaintiff admitted that he was able to confer regarding the renewal of leases, the negotiation of loans and the signature of bank checks. There is evidence that “he could perform all the secretarial work connected with the farm”. But he was unable to perform any manual work, or to inspect the land or direct the farm work as it progressed. The secretarial work in connection with the farms was unimportant. It does appear that he occasionally rode out to some of the farms in his automobile, but he was unable to perform any substantial part of his former work or continue his management of the farms.

The appellant contends that the findings and judgment are not supported by the evidence for the reason that the insured is not “totally and permanently disabled” from performing any and all character of work for remuneration, and that the plaintiff waived his right of recovery, under the disability clause of his policy, by refusing to permit a medical examination of his physical condition by a representative of the insurance company.

After a careful reading of the entire record on appeal, we are of the opinion the findings and judgment are adequately supported by the evidence. Fairly construed, it appears that the plaintiff was insured against total disability as a farmer. He was an unusually active and efficient grain and stock farmer. He was skilled and trained for no other avocation. For many years he had personally attended to every detail of conducting, managing and operating a farming enterprise consisting of sevcral grain ranches and one dairy farm. After sustaining a broken leg and injured tendons, together with other ailments, including chronic varicose veins, ruptured lesions, pulmonary embolism of the lung, excess weight, difficulty in breathing and loss of energy, he was unable to perform any substantial portion of the work or management necessary to the conducting of his farming enterprise. He was required to and did employ his son to carry on the work which he previously performed. He utterly abandoned the management of his ranches. He took no personal part in performing the manual work, in directing the labor of employees or in operating the farms. He was capable of performing no manual labor whatever. It is true that he occasionally rode in an automobile to some of the farms, but he was unable to inspect the land or to direct the labor in progress, and he made no attempt to do any work or to direct the operations on any of the ranches.

It appears that he retained his mental faculties and that he was capable of discussing with his son some of the affairs of the enterprise, including the renewal of leases, the negotiation of loans and the handling of their bank account. But it does not appear that he actually participated in such negotiations, except that he did sometimes talk informally with his son about the incidental affairs of the ranches. He maintained a joint bank account with his son, who, we assume, actually handled that account. He was not trained or qualified to conduct any other remunerative work. In support of the judgment, we are of the opinion the mental activity of the plaintiff and his occasional discussions with his son of unimportant incidents with relation to the farming enterprise do not deprive him of the right to recover compensation for total permanent disability as that term is defined in the policy and as it was intended by the parties to be construed.

The policy provides that when the insured becomes “totally and permanently disabled” after the policy anniversary nearest his sixtieth birthday, he may recover designated disability benefits, upon proof that he is wholly incapacitated “by bodily injury or disease so that he is prevented thereby from engaging in any occupation, or performing any work whatsoever for remuneration or profit”.

It is true that insurance policies, like other written contracts, should be interpreted by consideration of the entire document and the purposes sought to be attained thereby, so as to give effect to the intention of the parties as expressed in the language of the instrument reasonably construed. Ogburn v. Travelers Ins. Co., 207 Cal. 50, 276 P. 1004; 14 Cal.Jur. 442, § 23. It is said in First National Bank of Monrovia v. Maryland Casualty Company, 162 Cal. 61, at page 70, 121 P. 321, at page 325, Ann.Cas.1913C, 1170, that “where the terms of a policy are plain and explicit, the court can indulge in no forced construction of the contract to cast a liability upon the insurance company which it has not assumed”.

The foregoing disability clause of an insurance policy has been frequently construed to mean that when an insured person is so incapacitated from bodily injury or disease as to prevent him from substantially doing the work he was accustomed to perform, and when he is thereby so disabled as to render him unfit to earn substantial remuneration by following any other occupation for which he is qualified, he may be deemed to be totally disabled so as to entitle him to compensation. The policy specifically provides that after proof of total disability which has continued uninterruptedly for a period of three months, the insured person is presumed to be permanently disabled. The authorities are almost uniform in holding that the ability of an insured person to perform slight or trivial acts incident to his ordinary business, or his possession of physical or mental ability qualifying him to perform acts in another occupation which he is not trained to conduct and for which he has no reasonable opportunity to prepare himself, do not necessarily deprive him of the right to compensation. The ability to perform slight or inconsequential acts in connection with the business of an insured person may not defeat his compensation if he is not able to do any substantial part of his regular work. Fitzgerald v. Globe Indemnity Company of New York, 84 Cal.App. 689, 697, 258 P. 458; Wright v. Prudential Insurance Company of America, 27 Cal.App.2d 195, 215, 80 P.2d 752; Hill v. New York Life Insurance Company, 38 Cal.App.2d 627, 101 P.2d 752; Martin v. Postal Union Life Insurance Company, 31 Cal.App.2d 329, 87 P.2d 897; Taylor v. Southern States Life Ins. Co., 106 S.C. 356, 91 S.E. 326, L.R.A.1917C, 910; 6 Cooley's Briefs on Insurance, 2d Ed., p. 5543; 29 Am.Jur. p. 872, § 1161. It is true the meaning of disability clauses of insurance policies must be determined largely from the language of the contract itself, interpreted in the light of the particular circumstances of each case. The term “total disability” is defined in 6 Cooley's Briefs on Insurance, 2d Ed., at page 5543. That text reads:

“Total disability, within an accident policy, does not mean absolute physical inability to transact any kind of business pertaining to insured's occupation; and it exists though he may be able to perform a few occasional or trivial acts, if he is not able to do any substantial portion of his work.”

Likewise the text found in 29 American Jurisprudence, at page 872, reads: “The rule prevailing in most jurisdictions is that the ‘total disability’ contemplated by a sickness or accident insurance policy, or the disability clause of a life insurance policy, does not mean, as its literal construction would require, a state of absolute helplessness, but contemplates rather such a disability as renders the insured unable to perform all the substantial and material acts necessary to the prosecution of his business or occupation in a customary and usual manner. The fact that the insured is able to perform some inconsequential, trivial, or incidental duties connected with his usual employment or occupation does not preclude recovery under a total disability provision.”

In the case of Taylor v. Southern States Life Insurance Company, supra, it was held that a farmer might be wholly and permanently disabled from performing farm work, even though he was still able to drive a team to his farm after the wagon had been loaded; that he sometimes rode with a boy in delivering milk from his dairy cows; that he directed the feeding of cows, and that he arranged for the purchase of necessary farm products. In that case the policy contained the following clause:

“If the insured shall furnish to the company due proof that he has become physically disabled, and wholly, continuously, and permanently incapacitated from carrying on any gainful occupation, * * *.” he shall be entitled to compensation under the disability clause.”

The supreme court of South Carolina said in regard to the sufficiency of the evidence to show total disability:

“The plaintiff is a man of 60 years; he is a three–horse farmer; he never learned to read and he only learned to write his name, and he cannot do that now; he was suddenly stricken down during January while doing manual labor * * *; he has never since the attack been able to do farmwork. * * * the plaintiff testified that when his wagon was loaded he drove it out to his farm; that he sometimes rode in a buggy with a boy who delivered milk for him; that he looked after the feeding of the cows; that he ran a dairy business with four cows with the help of a 14 year old boy; that he made arrangements for farm purchases, etc. * * *

“An illiterate three–horse farmer, dependent in large measure on his own strong arm for a livelihood, accustomed and trained only to bodily labor, made by disease suddenly and generally unfit for bodily labor, comes within the meaning of the contract; he is deemed totally disabled when he is no longer able to do his accustomed task, and such work as he has only been trained to do, and upon which he must depend for a living.”

From the foregoing citations, which appear to be in accord with the weight of authority, we conclude that the question as to what constitutes total disability, according to the intention of the parties expressed in the definition included in the policy which is involved in this action, depends on the circumstances of each particular case. In determining that the question of total disability, which was involved in the Taylor case, should be presented to the jury, the learned judge wisely said:

“I think every case will have to stand on its own bottom as to disability. I am almost prepared to say that what might be disability to one person might not be to another.”

The foregoing language merely means, as applied to the facts of this case, that if a man is insured as a farmer, or as one who makes his living solely by means of his manual labor, and he is unable to reasonably earn substantial remuneration from any other available occupation, if he is injured or acquires ailments which prevent him from performing his usual work, or from following some other lucrative occupation, even though he may be able to perform occasional unimportant, inconsequential or trivial details of his accustomed work, he is deemed to be totally disabled so as to entitle him to compensation. Even though the policy in the present case has attempted to define the term “total disability”, it has not included all of the elements which may be necessary under all circumstances to determine absolutely whether an insured person is or is not totally disabled. No hard and fast rule can possibly adequately cover all classes, conditions and circumstances necessary to definitely determine whether one is actually totally disabled.

Many other cases have held that farmers were totally disabled so as to entitle them to compensation under similar clauses of insurance policies, notwithstanding the fact that they could perform some unimportant work incidental to their usual occupation, among which are: National Life & Acc. Ins. Co. v. Bradley, 245 Ky. 311, 53 S.W.2d 701; Mutual Life Ins. Co. v. Dowdle, 189 Ark. 296, 71 S.W.2d 691; Foglesong v. Modern Brotherhood, 121 Mo.App. 548, 97 S.W. 240; Colovos v. Home Life Ins. Co., 83 Utah 401, 28 P.2d 607; Manuel v. Metropolitan Life Ins. Co., La.App., 139 So. 548; Davis v. Midland Casualty Co., 190 Ill.App. 338. A long list of cases involving the question of total disability of farmers may be found in 24 A.L.R. 221, note; 79 A.L.R. 869, note, and 98 A.L.R. 814.

We may assume that reasonable minds may differ as to whether the respondent in this case is deemed to be totally and permanently disabled under the circumstances which are here involved. It may be said to be a close question on the facts adduced. But under such circumstances it was the sole province of the trial judge to determine whether the plaintiff is totally disabled so as to entitle him to compensation under the provisions of the policy. We are of the opinion we may not interfere with that conclusion. Bochner v. Equitable Life Assurance Society of United States, 4 Cal.App.2d 670, 41 P.2d 365.

There was an effort on the part of the appellant to prove that the plaintiff was physically capable of performing manual labor by showing that he went duck and dove hunting with a neighbor on several occasions. We are of the opinion that fact fails to establish substantial evidence that he was physically able to perform any of the work which he was formerly accustomed to do. It appears that in a marsh, on the premises of the neighbor, there was a duck–blind consisting of a hole four feet in diameter and three and a half feet deep, which was surrounded by bulrushes. A stool had been placed in that blind to accommodate the plaintiff. He admits that on one occasion he accompanied his neighbor to that blind in an automobile, and with great difficulty he reclined on the ground and slid into the hole, sitting on the stool, from which he fired at passing ducks. He did not stand on his feet as the ducks flew by. It does not even appear that his aim was good enough to wing a single bird. In reply to the question as to how many times the plaintiff went duck hunting in 1938, after his leg was broken, he said, “maybe I went once or twice”. It also appears that on four or five occasions in 1939, the plaintiff drove his automobile to a levee on his land, where he parked the car and sat upon the levee shooting at doves. He said in that regard: “I drove the automobile right close * * *, and you can shoot the doves right there.” He admitted that on such occasions he sometimes walked “a few hundred yards”. We think the hunting episodes are of little value in determining whether the plaintiff was actually totally or permanently disabled.

In support of the contention that the plaintiff in this case is not totally and permanently disabled, the appellant strongly relies on an opinion recently rendered in the case of Mutual Life Insurance Company of New York v. King, a Tennessee case, decided December 14, 1940.¹ In some respects that case is similar to the present one. It was based on a disability clause of a policy reading almost the same as the one involved in this case. A judgment finding that the insured was totally disabled was reversed on appeal. We believe that case may be distinguished from this one, on the facts. If it be deemed that the facts of the two cases are substantially the same, we are still of the opinion the King case is not controlling to the extent of requiring us to reverse the judgment in this case, in view of the weight of authority upholding a liberal construction of a disability clause of a policy in support of a judgment when reasonable minds may differ as to whether the facts show that an insured person is so disabled from injury or disease as to prevent him from performing all of the material parts of his employment and from engaging in any other available lucrative pursuit.

In the present case Mr. Erreca was insured as a farmer. He not only personally superintended and managed his own ranches, but he actually participated in the labor incident thereto. His manual labor was an important and necessary part of his employment. After his leg was broken and his ailments were incurred, he could neither perform any of the material manual labor nor could he continue to supervise or manage the operating of the ranches. He was compelled to and he did abandon both the actual work and the management of the ranches. He thereafter employed his son to perform all of the material part of the work and management formerly performed by him.

In the King case, the plaintiff was insured as a “farmer and stock raiser”. It does appear that he did, to some extent, act as managing agent for a partnership composed of himself and his five brothers, who owned 1,700 acres of grain and stock land which they leased to other tenants who raised thereon grain, tobacco and cattle. The opinion says in that regard: “He rents the grain land to eight or ten tenants who perform the substantial and material acts in the cultivation and harvesting of the crops.” The plaintiff and his five brothers divided the proceeds of the several ranches with their tenants. The plaintiff admitted that he managed and directed the farming operations of the partnership enterprise. He sustained a dislocated hip and was thereafter prevented from walking or riding a horse, but was compelled to go about on crutches or in an automobile. Apparently his injury did not require him to give up his management of the partnership enterprise to any appreciable extent, although he could not thereafter perform any manual work. It did not prevent him from attending to most of his former duties. He never gave up his management of the enterprise. The court said that his business included the raising of blooded stock for breeding purposes. After his injury he continued to sell cattle, sheep and hogs. The purchasers came to his farm to buy them from him. He attended sales of his cattle at the stockyards. He accompanied purchasers in an automobile over his ranch, aiding them in locating and separating the desired stock. The farm accounts were kept in his name. After his accident, he continued to keep the accounts and to make periodical reports thereof. No physician testified that King suffered total permanent disability from his dislocated hip. Three physicians testified that he sustained only “a ten per cent disability to the leg”. The appellate court found from the facts in that case “that the plaintiff is able to do the material act necessary to the prosecution of the insured's business or occupation (and substantially all the material acts) in (substantially) his usual and customary manner”.

In the present case, in spite of the serious conflict of testimony which exists, we think there is credible evidence that Mr. Erreca absolutely abandoned his personal operation and management of the ranches, employing his son to carry on that work for him, and that he was unable to perform any substantial portion of his former duties after he sustained the broken leg and acquired the other ailments.

The appellant insists that the plaintiff waived his right to disability payments by refusing to submit to subsequent medical examinations as provided by paragraph four of the special disability benefits clause of the policy. In determining the question of the asserted waiver of benefits, that paragraph should be read in connection with the preliminary paragraph, as follows:

“Disability benefits shall be effective upon receipt of due proof at the Company's Home Office, before default in the payment of premium, that the Insured became totally and permanently disabled subsequent to the delivery hereof and before the policy anniversary nearest his sixtieth birthday.

“Disability shall be deemed to be total whenever the insured becomes wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation, or performing any work whatsoever for remuneration or profit and under this contract disability shall be presumed to be permanent when it is present and after the insured has been continuously so disabled for not less than three months. * * *

“4. Recovery from Disability––The Company may from time to time demand due proof of such continued disability, and any medical adviser of the Company shall be allowed to examine the person of the Insured in respect to any alleged permanent total disability, in the manner and at such times as the medical adviser may require but not oftener than once a year after such disability has continued for two full years. Upon failure to furnish such proof, or if it appears that the Insured is no longer wholly disabled as aforesaid, no further premiums shall be waived nor income payments made.”

With respect to the medical examination of the plaintiff the facts are that he was injured February 2, 1938; he incurred the varicose veins and other ailments shortly thereafter; he did submit to medical examinations at the request of the insurance company; June 7, 1938, he was examined by Dr. Neil J. Dau, who reported that he was then “totally disabled” and unable to perform any manual work; the company accepted the evidence adduced as satisfactory proof that he was permanently disabled, and paid disability compensation of $200 per month for five consecutive months, until October, 1938, pursuant to the terms of the policy. Sometime thereafter the company demanded that the insured again submit to a medical examination. He consented to that request, but the time for examination was postponed, and he failed to submit to another examination. We are not informed as to whether he actually refused to comply with their request. October 20, 1938, Dr. F. Harold Downing reported to the company that the insured was no longer totally and permanently disabled. Upon that report, and not for the assigned reason that the insured had refused to submit to a medical examination, further disability payments were refused. This suit was then commenced.

We may concede that paragraph four of the disability clause of the policy is inconsistent with the paragraph preceding it. The last–mentioned paragraph definitely declares that “disability shall be presumed to be permanent” when the condition exists continuously for three consecutive months. On the contrary, paragraph four provides for the right of medical examination when demanded by the insurance company, and that, “upon failure to furnish such proof” no further premiums shall be waived, nor “income payments made”.

Assuming that the language of the two paragraphs mentioned is conflicting, and therefore uncertain, under the well–established rule of construction, that uncertainty must be resolved against the insurance company. Dietlin v. Missouri State Life Ins. Co., 126 Cal.App. 15, 25, 14 P.2d 331, 15 P.2d 188. It will be observed that the policy definitely declares that, upon acceptable proof that the disability of the insured has existed for three consecutive months, it will be “presumed to be permanent”. That means that the disability is then conceded to be fixed, lasting and unchangeable as distinguished from temporary ailments. The conditions which led to the acknowledgment by the company of a permanent disability on the part of the insured was not only his broken leg, from which he never recovered, but also varicose veins, pulmonary embolism of the lung, excess weight, restriction of breath, etc. Even though a broken limb may not result in permanent disability, the other ailments would be more likely to do so. At least the company acknowledged permanent disability and paid compensation to the insured for five consecutive months on the theory that his disability was permanent.

The courts of California, and those of several other states have construed the same language in other insurance policies against the insurers by definitely holding that the specific declaration in the contract that after disability has existed for a stated time, it shall be presumed to be permanent. This creates a conclusive, indisputable presumption that the disability is continuous and not merely temporary. It is held that such a presumption is not disputable. Dietlin v. Missouri State Life Ins. Co., supra; 110 A.L.R. 631, note. It is true that there is a conflict of authorities upon that subject in some jurisdictions. But California and half a dozen other states have unequivocally upheld that doctrine. In the California case a hearing was denied by the Supreme Court. We are therefore bound by that decision.

The note in 110 A.L.R. at page 631, preceding the citation of authorities supporting the foregoing doctrine, declares in that regard:

“On this question there is a decided conflict among the authorities, some courts taking the view that the presumption created by the policy is conclusive, and that a disability which has lasted for the requisite period of time to render it presumably permanent within the meaning of the policy is nonetheless permanent, although it has since terminated; and that consequently an insured who has suffered such disability may, even after the termination thereof, recover benefits therefor as for permanent disability.”

The Dietlin case from California, supra, is the first one cited under the preceding note.

The appellants contend that the disability clause of the policy distinguishes between permanency of a disability and a condition of total disability which prevents the insured from performing any substantial work; that while the permanency of the ailment may be conclusively presumed to continue after it has lasted three months, the policy specifically authorizes the insurance company to demand, at any time, a medical examination, not more frequently than once a year; that if it appears from such examination “the insured is no longer wholly disabled” the subsequent premiums will again become due and the disability benefits will then cease.

Paragraph four of the disability clause is reasonably subject to that construction. But it seems inconsistent to say that the disability which is conclusively presumed to be permanent and lasting may subsequently be shown to be merely partial and not total, since the only disability contemplated by the policy in this case is total permanent disability. It may be reasonably asserted the only disability which, by the terms of the policy, is deemed to be permanent after it has lasted three months, is the total and permanent disability referred to in the contract. That construction would indicate that an irreconcilable uncertainty exists in the contract in that regard. As we have previously said, that uncertainty should be determined against the insurance company. However, we are disposed to accept the appellants' construction of the policy in that regard and hold that the conclusive presumption is confined to the permanency of the ailments and not to the question as to whether the insured continues to remain totally incapacitated. That construction would entitle the company to demand of the insured a subsequent medical examination. To be sure, such examination should be demanded and conducted in good faith. There is no evidence of bad faith on the part of the company in demanding a medical examination in this case.

We are of the opinion the respondent did not waive his right to disability payments by refusing to submit to further medical examination for the reason that the appellants ceased to make disability payments after September 2, 1938, and on October 26, 1938, notified the respondent in writing that “Your total disability has ceased. * * * We must now advise you that the income payment of $200.00 made you as of September 2, 1938, * * * must be the last on account of your present claim for total disabling benefits in accordance with the terms of your policy.” The demand for medical examination was not made until after the company denied its liability.

The court found that paragraph V of the answer, which states that the plaintiff refused to submit to medical examination, was not true. The court further found that the insurance company, in its letter of October 26, 1938, disclaimed further liability for disability payments. There is ample evidence to support those findings. The letter from which we have previously quoted is clear and explicit in that regard. The demand that the insured submit to further medical examination was not made until after the company stopped disability payments and positively denied further liability. The plaintiff's right of action then accrued. It would be an idle and unnecessary act for the insured to submit to a medical examination after the company had absolutely denied its liability. That subsequent refusal was not a waiver of his right to recover payments which were otherwise due under the policy.

The judgment is affirmed.

FOOTNOTES

1.  No opinion for publication.

THOMPSON, Justice.

I concur: TUTTLE, J.