Occidental Life Insurance Company

Count A of the complaint is as follows: 'Plaintiff claims of the defendant the sum of Nineteen Hundred Thirteen and 80/100 ($1,913.80) Dollars due on a policy whereby
the defendant on, to-wit, the fourteenth day of November, 1951 insured the life of the plaintiff for the sum of Thirty Five
Thousand ($35,000) Dollars, and in said policy agreed to pay to the plaintiff a monthly income equal to One (1%) Per Cent
of the amount of said sum, if the plaintiff, after paying at least one full annual premium and before default of the payment
of any subsequent premium and before attaining the age of Sixty (60) years, should become permanently and totally disabled
as the result of injury or disease so as to be wholly unable to engage in any occupation or to perform any work for compensation
or profit. Plaintiff further alleges that said policy further provided that such total disability shall be presumed to be
permanent after the plaintiff has been continuously totally disabled for not less than four (4) months and was during all
that period wholly prevented from engaging in any occupation or performing any work for compensation or profit by cause or
causes other than death, and that said monthly payments were to be made beginning four (4) months after the date of the commencement
of such disability and on the same day of each month thereafter during such disability. And plaintiff avers that after paying
at least one full annual premium and before default in payment of any subsequent premium and before attaining the age of sixty
(60) years, the plaintiff became so totally disabled on, to-wit, July 4, 1952 so as to be wholly unable to engage in any occupation
and perform any work for compensation or profit and the plaintiff was continuously so totally disabled during the months of
to-wit, July, August, September, October, November, December of 1952 and the first part of January, 1953, and plaintiff avers
that although the plaintiff has furnished due proof thereof to the defendant, yet the defendant has failed to pay the monthly
income that was due him during the period from to-wit, July 4, 1952 through January 4, 1953 amounting to the sum of Seven
Hundred ($700.00) Dollars. Plaintiff further alleges that on, to-wit, November 14, 1952 and while the plaintiff was so totally
disabled, as aforesaid, the plaintiff paid to the defendant the second annual premium on said policy amounting to the sum
of One Thousand Two Hundred Thirteen and 80/100 ($1,213.80) Dollars and plaintiff alleges that by virtue of the terms and
provisions of said policy the defendant waived all payments of premiums on said policy falling due during the continuance
of the disability hereinabove described, which payment of said premium the defendant has failed or refused to waive and has
failed to refund to the plaintiff upon demand. Hence this suit.' GOODWYN, Justice. Appellee, Fred W. Nichols, brought suit
against appellant, Occidental Life Insurance Company of California, to recover disability benefits ($350 per month for two
months) and return of a premium paid ($1,213.80) as provided for in a policy of insurance issued to him by the appellant.
A jury verdict was rendered in favor of plaintiff and a judgment thereon was duly entered. The defendant's motion for a new
trial being overruled, it brought this appeal.