This suit is for damages alleged to have resulted from anticipatory breaches of policies of insurance under which the insured, the appellant, was entitled, upon becoming totally disabled, to a waiver of payment of premiums and to stipulated benefits per month. No claim was asserted in the petition for benefits, if any, having already accrued under the policies. The judgment adjudged that the defendant, appellee, go hence without day and recover of the plaintiff, appellant, its cost expended.
This court being of opinion that there was no repudiation or anticipatory breach of the policies by the appellee entitling the appellant to recover their present value as damages (New York Life Insurance Co. v. Viglas, 297 U.S. 672, 56 S.Ct. 615, 80 L.Ed. 971, decided by the Supreme Court March 30, 1936), and being further of the opinion that the appellant is not by the judgment estopped from making timely claim for disability benefits, if any, which have accrued and remain unpaid, it is ordered that the judgment be, and it is hereby, affirmed.