Azevedo v. Mut. Life Ins. Co. of N.Y.

• Decision Date: 29 January 1941
• Citation: 31 N.E.2d 559,308 Mass. 216
• Parties: AZEVEDO v. MUTUAL LIFE INS. CO. OF N.Y.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

308 Mass. 216

31 N.E.2d 559

AZEVEDO

v.MUTUAL LIFE INS. CO. OF N.Y.

Supreme Judicial Court of Massachusetts, Bristol.

Jan. 29, 1941.

Suit by Manuel P. Azevedo against the Mutual Life Insurance Company of New York, to recover six monthly payments of $50 each under disability clauses of a policy of insurance. The judge found for plaintiff. From a decision of the appellate division ordering judgment for defendant and dismissing a report, plaintiff appeals.

Order of appellate division affirmed.Appeal from Appellate Division of District Court, Southern District, Bristol County; Nunes, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, COX, and RONAN, JJ.

O'Brien, Bentley & Ponte and T. F. O'Brien, all of New Bedford, for plaintiff.

G. Hoague and John Barker, Jr., both of Boston, for defendant.

RONAN, Justice.

This is an action of contract to recover six monthly payments of $50 each for the period beginning March 26, 1936, under the disability clauses of a policy of insurance issued on September 25, 1923, by the defendant on the life of the plaintiff. At the trial in the District Court, the trial judge viewed and examined the plaintiff's right hand; that policy of insurance was introduced as an exhibit; and the case was submitted on a statement of agreed facts in which the parties stipulated that the facts recited were true and comprised all the facts, and that the judge might draw reasonable inferences. The judge found for the plaintiff. The case is here on appeal by the plaintiff from a decision of the Appellate Division ordering judgment for the defendant.

The extent of the plaintiff's impairment is specifically set forth in the statement of agreed facts, and so are the material portions of the policy. A view of the plaintiff's hand by the trial judge and the introduction of the policy as an exhibit at the trial could hardly be said to affect anything included in the statement of agreed facts. Keeney v. Ciborowski, 304 Mass. 371, 24 N.E.2d 17;Rice & Lockwood Lumber Co. v. Boston & Maine Railroad, 308 Mass. 101, 31 N.E.2d 219. This statement of agreed facts is not merely evidence that the judge was to weigh and consider in arriving at a decision, but it was a recital of facts admitted to be true, and further provided that such facts comprised all the facts. This was a case stated. Wolbach v. Commissioner or Corporations and Taxation, 268 Mass. 365, 167 N.E. 677;McNulty v. Boston, 304 Mass. 305, 23 N.E.2d 896. And the conclusions of the trial judge, reached by inference from the facts stated, are open to review as matter of fact when the case comes here by appeal. United States Fidelity & Guaranty Co. v. English Construction Co., 303 Mass. 105, 20 N.E.2d 939;Keefe v. Johnson, 304 Mass. 572, 24 N.E.2d 520.

The policy provided for the payment of disability benefits if the insured ‘has become totally and permanently disabled by bodily injury or disease, so that he is, and will be, permanently, continuously and wholly prevented thereby from performing any work for compensation, gain or profit, and from following any gainful occupation.’ It also provided that total disability continuing for not less than ninety days ‘shall, during its further continuance, be presumed to be permanent.’ The single issue is whether the plaintiff, upon the facts stated with the permissible inferences, has shown that he was totally and permanently disabled within the terms of the policy.

The plaintiff sustained a fracture of his right elbow when he was twelve years of age, and the callous resulting from the fracture encroached upon the ulnar nerve causing ulnar paralysis which, however, did not appear until 1933. Thereafter the paralysis progressed to such an extent that on December 28, 1935, the insured, who was then fifty-eight years old, was unable to use the ring finger and little finger of his right hand. His right thumb became atrophied at the base, causing a weakness of the grip and rendering it impossible for him to perform manual labor. The insured has suffered no disability other than this impairment of the use of his right arm.

The plaintiff, prior to December 28, 1935, operated a dairy farm in Westport, where he kept thirty-five cows. The farm comprised 104 acres of which 34 acres were and have remained under cultivation. The plaintiff had performed the various manual services incidental to the proper cultivation and upkeep of the land. He milked cows, plowed the land, and used the different farm implements necessitating the use of both arms and hands. With the aid of three employees, he...