Hovhanesian v. New York Life Ins. Co.

• Decision Date: 27 January 1942
• Citation: 39 N.E.2d 423,310 Mass. 626
• Parties: THOMAS HOVHANESIAN v. NEW YORK LIFE INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 626

39 N.E.2d 423

THOMAS HOVHANESIAN v. NEW YORK LIFE INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk,

January 27, 1942

November 5, 1941.

Present: FIELD C.J., DONAHUE, QUA, & RONAN, JJ

Insurance, Proof of loss, Waiver, Disability insurance. Waiver. Practice, Civil Appeal. Words, "Due proof."

Under the provisions of a policy of insurance for payment of benefits whenever the insurer received "due proof," before default in payment of premiums, that the insured had become "wholly disabled" so that he was and would "be presumably, thereby" "permanently" disabled and that such disability "has then existed for not less than sixty days," the mere facts, that before he defaulted in payment of a premium the insured wrote to the insurer that he had met with an accident on a date less than sixty days before and that he "was sick in bed," and his son had informed a clerk of the insurer that the insured had had an accident and "was in bad condition right now" and not "able to work, I don't know for how long," did not warrant a finding that the insured had furnished the required "due proof."

Statements, oral and written, by an insured to the insurer, made after default in payment of a premium and complementary to an insufficient proof submitted before such default, did not warrant a finding of "due proof" by the insured which the policy required should be made before such default.

A notice printed on the back of a policy of insurance stating in substance that it was "not necessary" for the insured "to employ the agency of any person" "in collecting the insurance under this policy," and that "time and expense" would "be saved by writing direct to the" insurer's home office, did not amount to a waiver of a provision of the policy requiring "due proof" of a claim thereunder.

An appeal claimed from an order sustaining a demurrer is not brought before this court by a mere reference to the appeal in a bill of exceptions saved at the trial on the merits.

CONTRACT. Writ in the Superior Court with a date agreed to be July 20, 1940.

The case was tried before Goldberg, J. C. W. Lavers, for the plaintiff.

F. H. Nash, (B.

Aldrich with him,) for the defendant.

QUA, J. This is an action to recover for disability on a policy of life insurance which also includes a provision for annual disability payments "if the Insured becomes wholly and permanently disabled . . . subject to all the terms and conditions contained in Section 1 hereof."

"Section 1" defines the "Total and Permanent Disability Benefits" and, in so far as material to the grounds of this decision, provides that whenever the company receives due proof, before default in the payment of premium, that the insured "has become wholly disabled by bodily injury or disease so that he is and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit, and that such disability has then existed for not less than sixty days" the company will waive payment of the premium and will "pay the Insured a sum equal to one-tenth of the face of the Policy and a like sum on each anniversary thereafter during the lifetime and continued disability of the Insured."

It is further provided that the company may, not oftener than once a year demand due proof of continued disability; and upon failure to furnish such proof, or if it appears that the insured is no longer wholly disabled, no further premiums shall be waived nor income payments made.

After a verdict for the plaintiff for a sum which implies a finding of disability for about three years, terminating long before the agreed date of the writ, and after the jury had also in answer to questions found specially "that the plaintiff was not totally disabled at the time of the trial and had not been continuously totally disabled," the judge entered a verdict for the defendant on leave reserved. The plaintiff excepted. Thus the question is presented for decision whether there was any evidence to support the jury's finding against the defendant for total and permanent disability.

In order to make out a case of total and permanent disability not only must the disability have been total but it must also have been permanent in the sense meant by the policy. But the requirement of the policy that the disability be permanent must receive a reasonable construction. The parties could hardly have intended that a totally disabled insured person should wait indefinitely until he either recovered or died in order to ascertain whether his total disability was also permanent. On the other hand, the requirement of permanency cannot be ignored and the policy construed as if totality were the only requirement. Where the policy itself furnishes no solution of this problem courts have solved it by treating a total disability as permanent within the meaning of the policy, for the purpose of beginning the payments only, if it is shown to be of such a character that it is likely to continue permanently; that is to say, if it is "presumably" permanent. Thereafter, if at any time total disability ceases, the payments cease. We adopted this rule in Yoffa v. Metropolitan Life Ins. Co. 304 Mass. 110 . See Arabia v. John Hancock Mutual Life Ins. Co. 301 Mass. 397; Azevedo v. Mutual Life Ins. Co. 308 Mass. 216 , 219. The language of the policy in this case lends itself readily to this construction.

On the record before us it is hard to discover any competent evidence tending to prove the disability of the plaintiff. There was evidence of self serving statements and declarations by the plaintiff out of court and of a statement by his son. Further reference will be made to these shortly. Whatever competency they may have had upon the question of "due proof" of disability, they were not admissible to prove the fact of disability. One of these statements was contained in a letter from the plaintiff to the defendant dated March 13, 1933, and was to the effect that the plaintiff's "accident" took place on June 27, 1932, and that he had been totally and permanently disabled since his "accident." If we assume, without deciding, that this was some evidence of the fact of disability because, when admitted, its application was not restricted to the issue of "due proof" (see Orpin v. Morrison, 230 Mass. 529 , 531, 532; DuBois v. Powdrell, 271 Mass. 394; Crowley v. Swanson, 283 Mass. 82 , 85; Blackman v. Coffin, 300 Mass. 432, 437), still we are satisfied that the plaintiff must fail upon another ground.

There was no evidence of the "due proof" of total and permanent disability required by the express terms of the policy to be received by the company not less than sixty days after the disability began and before default in the payment of premium. There was...