TUCKETT, Justice.
The plaintiff filed a separate action .■against each of the defendants to recover benefits due under health and accident policies issued by the defendants. The two .cases were consolidated for trial. From an adverse verdict and judgment of the court below the defendants have appealed to this •court.
On May 12, 1962, the defendant United Benefit Life Insurance Company issued a policy to the plaintiff, and on May 8, 1964, the defendant Mutual of Omaha Insurance ■Company issued a policy to the plaintiff. Both policies insured the plaintiff against loss arising from sickness or accident. At the time the policies were issued and for more than 20 years prior thereto the plaintiff had worked as a brick mason. During his adult life, except for a short period of time in the army and during another six-month interval when the plaintiff worked at a brewery, he had followed the trade of a brick mason. The record shows that the plaintiff’s schooling had ended at the fifth grade.
The pertinent provisions of the policies we are here concerned with are: The Mutual of Omaha policy defines injuries as follows: “Injuries mean accidental bodily injuries received while this policy is in force and resulting in a loss independently of sickness and other causes.” In the same policy the phrase “total loss of time” means “that period of time during which you are unable to engage in any other gainful work or service for which you are reasonably fitted by education, training or experience.”
In the policy issued by United Benefit Life Insurance Company the insuring clause of the policy states that the policyholder is insured “against loss of life, limb, or sight resulting directly and independently of all other causes from accidental bodily injuries received while this policy is in force,” and the term “loss of time” means “that period of time for which the insured is able to perform none of his occupational duties.”
On September 21, 1964, while the plaintiff was working as a brick mason, a plank which was a part of the scaffold on which he was working fell from beneath him. The plaintiff caught himself with one hand on the wall and the other hand on the scaffold which prevented him from falling to the ground below. The plaintiff remained hanging until a fellow employee assisted him in regaining a position on the [216]*216scaffold. Approximately an hour after this incident the plaintiff began to suffer pain in his back.
The next day the plaintiff continued to suffer pain in his lower back which radiated down his left leg. The plaintiff consulted Dr. Robert H. Lamb, an orthopedic surgeon. Dr. Lamb examined the plaintiff and took X-rays of the plaintiff’s back and as a result he concluded that the plaintiff had a pre-existing condition of the back known as spondylolisthesis. This defect might be either congenital or acquired. Dr. Lamb was also of the opinion that the plaintiff had received an injury causing pressure on the new nerve roots at the lower lumbar level accounting for the plaintiff’s numbness and pain.
The plaintiff was treated by a course of physical therapy in the hospital which treatment did not relieve his symptoms, and subsequently two surgical procedures were performed in an effort to effect a cure of the plaintiff’s back problems.
The defendants made payments to the plaintiff pursuant to the terms of the policies until on or about June 1965 when the defendants notified the plaintiff that the plaintiff’s ailment would be considered a loss due to illness without confinement, and that a payment of $300 would represent the final payment of benefits under the policies. Upon failure of the defendants to further perform, these actions resulted.
Trial was had in the court below on the-issues as to whether or not the plaintiff was totally and permanently disabled within the terms and conditions of the policies, and whether or not the accidental fall of the plaintiff activated and precipitated a. latent condition of the plaintiff’s back to-a disability condition. During the course-of the trial the plaintiff testified that he-had experienced no back problems prior to-the accident of September 21, 1964, and that he had continuously worked as a brick mason for approximately 30 years except for two short periods. The plaintiff’s attending physician, Dr. Lamb, testified that he was of the opinion that the plaintiff would be unable in the future to continue on with the trade of brick masonry. The defendants also called medical experts who testified as to the plaintiff’s condition. The testimon)'- of these physicians conflicted in some respects with the testimony of Dr. Lamb, but it was generally agreed that the plaintiff would be unable to follow his trade as a brick mason. There was some testimony to the effect that the plaintiff might be physically capable of engaging in some other line of work such as brick masonry contracting.
The jury returned a general verdict finding the issues in favor of the plaintiff. After the verdict was returned, the court calculated the amount due under the terms of the policies together with interest to the-time of trial. In addition thereto the court [217]*217found that the defendants had repudiated their contracts of insurance and concluded ■that the plaintiff was entitled to a lump sum judgment for future benefits which would ■accrue under the terms of the policies. 'The court received evidence as to the life ■expectancy of the plaintiff and based thereon calculated and made a finding as to future benefits.
The defendants are here contending that the evidence failed to show that the plaintiff was totally disabled and that his disability did not result from the accident alone exclusive of all other causes. While it is true that plaintiff suffered from a condition of the back, there is no dispute in the evidence that the plaintiff had carried on his trade as a brick mason over a long period of time without being aware that he had a defect known as spondylolisthesis and without that condition interfering with his work. It must be concluded that the defendants when they issued their policies of health and accident insurance took the plaintiff in the condition they then found him. There is evidence of record from which the jury could conclude that the plaintiff’s disability resulted proximately from the accident and that the nondisabling and dormant condition of the plaintiff’s back was precipitated into a disabling condition by the accident in question.1 While the defendants excepted to the court’s instructions to the jury and also excepted to the refusal of the court to give certain of the defendants’ requested instructions, from our review of the instructions we are of the opinion that the issues were fairly and adequately submitted to the jury and we -find no grounds for reversal of the verdict.
This brings us to what we consider the most critical problem in the case. Did the court err in granting an award for future disability under the doctrine of anticipatory breach? This problem is one of first impression in this jurisdiction. While the defendants cite the case of Colovos v. Home Life Insurance Co. of New York2 as being an expression by this court as to what the rule is, an examination of the case reveals that the doctrine of anticipatory breach was not before the court. The decisions of a number of the states permit an insured to recover a money judgment for the present value of future payments based upon the insured’s life expectancy.
Free access — add to your briefcase to read the full text and ask questions with AI
TUCKETT, Justice.
The plaintiff filed a separate action .■against each of the defendants to recover benefits due under health and accident policies issued by the defendants. The two .cases were consolidated for trial. From an adverse verdict and judgment of the court below the defendants have appealed to this •court.
On May 12, 1962, the defendant United Benefit Life Insurance Company issued a policy to the plaintiff, and on May 8, 1964, the defendant Mutual of Omaha Insurance ■Company issued a policy to the plaintiff. Both policies insured the plaintiff against loss arising from sickness or accident. At the time the policies were issued and for more than 20 years prior thereto the plaintiff had worked as a brick mason. During his adult life, except for a short period of time in the army and during another six-month interval when the plaintiff worked at a brewery, he had followed the trade of a brick mason. The record shows that the plaintiff’s schooling had ended at the fifth grade.
The pertinent provisions of the policies we are here concerned with are: The Mutual of Omaha policy defines injuries as follows: “Injuries mean accidental bodily injuries received while this policy is in force and resulting in a loss independently of sickness and other causes.” In the same policy the phrase “total loss of time” means “that period of time during which you are unable to engage in any other gainful work or service for which you are reasonably fitted by education, training or experience.”
In the policy issued by United Benefit Life Insurance Company the insuring clause of the policy states that the policyholder is insured “against loss of life, limb, or sight resulting directly and independently of all other causes from accidental bodily injuries received while this policy is in force,” and the term “loss of time” means “that period of time for which the insured is able to perform none of his occupational duties.”
On September 21, 1964, while the plaintiff was working as a brick mason, a plank which was a part of the scaffold on which he was working fell from beneath him. The plaintiff caught himself with one hand on the wall and the other hand on the scaffold which prevented him from falling to the ground below. The plaintiff remained hanging until a fellow employee assisted him in regaining a position on the [216]*216scaffold. Approximately an hour after this incident the plaintiff began to suffer pain in his back.
The next day the plaintiff continued to suffer pain in his lower back which radiated down his left leg. The plaintiff consulted Dr. Robert H. Lamb, an orthopedic surgeon. Dr. Lamb examined the plaintiff and took X-rays of the plaintiff’s back and as a result he concluded that the plaintiff had a pre-existing condition of the back known as spondylolisthesis. This defect might be either congenital or acquired. Dr. Lamb was also of the opinion that the plaintiff had received an injury causing pressure on the new nerve roots at the lower lumbar level accounting for the plaintiff’s numbness and pain.
The plaintiff was treated by a course of physical therapy in the hospital which treatment did not relieve his symptoms, and subsequently two surgical procedures were performed in an effort to effect a cure of the plaintiff’s back problems.
The defendants made payments to the plaintiff pursuant to the terms of the policies until on or about June 1965 when the defendants notified the plaintiff that the plaintiff’s ailment would be considered a loss due to illness without confinement, and that a payment of $300 would represent the final payment of benefits under the policies. Upon failure of the defendants to further perform, these actions resulted.
Trial was had in the court below on the-issues as to whether or not the plaintiff was totally and permanently disabled within the terms and conditions of the policies, and whether or not the accidental fall of the plaintiff activated and precipitated a. latent condition of the plaintiff’s back to-a disability condition. During the course-of the trial the plaintiff testified that he-had experienced no back problems prior to-the accident of September 21, 1964, and that he had continuously worked as a brick mason for approximately 30 years except for two short periods. The plaintiff’s attending physician, Dr. Lamb, testified that he was of the opinion that the plaintiff would be unable in the future to continue on with the trade of brick masonry. The defendants also called medical experts who testified as to the plaintiff’s condition. The testimon)'- of these physicians conflicted in some respects with the testimony of Dr. Lamb, but it was generally agreed that the plaintiff would be unable to follow his trade as a brick mason. There was some testimony to the effect that the plaintiff might be physically capable of engaging in some other line of work such as brick masonry contracting.
The jury returned a general verdict finding the issues in favor of the plaintiff. After the verdict was returned, the court calculated the amount due under the terms of the policies together with interest to the-time of trial. In addition thereto the court [217]*217found that the defendants had repudiated their contracts of insurance and concluded ■that the plaintiff was entitled to a lump sum judgment for future benefits which would ■accrue under the terms of the policies. 'The court received evidence as to the life ■expectancy of the plaintiff and based thereon calculated and made a finding as to future benefits.
The defendants are here contending that the evidence failed to show that the plaintiff was totally disabled and that his disability did not result from the accident alone exclusive of all other causes. While it is true that plaintiff suffered from a condition of the back, there is no dispute in the evidence that the plaintiff had carried on his trade as a brick mason over a long period of time without being aware that he had a defect known as spondylolisthesis and without that condition interfering with his work. It must be concluded that the defendants when they issued their policies of health and accident insurance took the plaintiff in the condition they then found him. There is evidence of record from which the jury could conclude that the plaintiff’s disability resulted proximately from the accident and that the nondisabling and dormant condition of the plaintiff’s back was precipitated into a disabling condition by the accident in question.1 While the defendants excepted to the court’s instructions to the jury and also excepted to the refusal of the court to give certain of the defendants’ requested instructions, from our review of the instructions we are of the opinion that the issues were fairly and adequately submitted to the jury and we -find no grounds for reversal of the verdict.
This brings us to what we consider the most critical problem in the case. Did the court err in granting an award for future disability under the doctrine of anticipatory breach? This problem is one of first impression in this jurisdiction. While the defendants cite the case of Colovos v. Home Life Insurance Co. of New York2 as being an expression by this court as to what the rule is, an examination of the case reveals that the doctrine of anticipatory breach was not before the court. The decisions of a number of the states permit an insured to recover a money judgment for the present value of future payments based upon the insured’s life expectancy. However, the great majority of decisions permit recovery under a disability policy only of installments accrued and un[218]*218paid.3 The doctrine of anticipatory breach has not ordinarily been extended to unilateral contracts. As stated in the Restatement of Contracts :4 In unilateral contract for the payment in installments after default of one or more, no repudiation can amount to an anticipatory breach of the rest of the installments not yet due. We are of the opinion that it was error for the trial court to enter judgment for future benefits to become due under the policies.5
The verdict and the decision of the trial court amounts to a determination that the plaintiff is entitled to the monthly payments as specified in the insurance policies so long as he is totally and permanently disabled. Defendants are not relieved of the obligation of making the payments unless the plaintiff should recover or die. Should the defendants fail in the future to make payment in accordance with the terms of the policies without just cause or excuse and the plaintiff is compelled to file another action for delinquent installments, the court at that time should be able to fashion such relief as will compel performance.
This matter is remanded to the trial court with directions to modify its judgment so as to eliminate that part of the judgment pertaining to future benefits under the policies. Plaintiff (respondent) is entitled to' costs.
CROCKETT, C. J., and CALLISTER’ and ITENROID, JJ., concur.