Bubany v. New York Life Ins. Co. , 39 N.M. 560 ( 1935 )


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  • The defendant company issued the policy in suit and doubtless many others of a like character after it was advised by many decisions of courts of last resort announcing the interpretation of the policy provision "total disability" as set forth by Chief Justice SADLER in the opinion prepared by him for the court. It had knowledge, therefore, that by reason of such adjudications, its policies, if they continued to issue them in the old form, would in all probability be accepted by some, and possibly many persons, upon the understanding that the company intended to, and did in fact, assume the correctness of such interpretations. If such was not its intention, its plain duty was to so modify the language of its policies as to make its purpose clear. I am unwilling to concede that an insurance company may continue to issue policies without any modification of their terms, after certain provisions thereof have been construed by several courts of the highest character and ability, and be heard to insist, in controversies between itself and the insured with respect to such subsequently issued policies, that they do not in fact cover risks which they have been judicially adjudged to cover before they were issued.

    Such a view was expressed by Thayer, Circuit Judge, in Fidelity Casualty Co. v. Lowenstein, 97 F. 19, 38 C.C.A. 29, 46 L.R.A. 450, and approved by this court in Buel v. Kansas City Life Ins. Co., 32 N.M. 34, 250 P. 635, 52 A.L.R. 367.

    I therefore concur in the decision, irrespective of my view as to the soundness of the reasoning of the decisions construing the policy provision "total disability" in the manner set forth in the prevailing opinion.

Document Info

Docket Number: No. 4052.

Citation Numbers: 51 P.2d 864, 39 N.M. 560

Judges: SADLER, Chief Justice.

Filed Date: 10/16/1935

Precedential Status: Precedential

Modified Date: 1/12/2023