Kordulak v. Prudential Ins. Co. of Am.

• Decision Date: 16 February 1937
• Docket Number: No. 245687.,245687.
• Citation: 190 A. 325
• Parties: KORDULAK v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: New Jersey Supreme Court

190 A. 325

KORDULAK

v. PRUDENTIAL INS. CO. OF AMERICA.

No. 245687.

District Court of Jersey City, New Jersey.

Feb. 16, 1937.

Action by Matey Kordulak against the Prudential Insurance Company of America. Judgment for plaintiff.

Solomon & Miller, of Jersey City, for plaintiff.

Drewen & Nugent, of Jersey City, for defendant.

EGGERS, Judge.

This is an action by Matey Kordulak, the plaintiff, to recover payments on an insurance policy issued by the defendant, the Prudential Insurance Company of America.

The facts as adduced at the trial are substantially as follows: The policy No. 5552309 was issued by the defendant company on August 24, 1926, and provided, among other things, that:

"Total and permanent disability benefits. Monthly income—One Hundred Dollars per month, payable at the Home Office of the Company to the Insured (plaintiff) in event of total and permanent disability before age 60, subject to the provisions as to Total and Permanent Disability contained in the policy, as follows:—

"Disability before age 60: Waiver of premiums—monthly income to the insured. —If the insured shall become totally and permanently disabled, either physically or mentally, from any cause whatsoever, to such an extent that he (or she) is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value during the remainder of his (or her) lifetime, and if such disability shall occur at any time after the payment of the first premium on this Policy, while this Policy is in full force and effect and the insured is less than sixty years of age, and before any non-forfeiture provision shall become operative, the Comparry upon receipt of due proof of such disability, will grant the following benefits:

"Monthly income to the insured.—The Company will, in addition to waiving premiums, pay to the Insured the Monthly Income, specified on the first page hereof under the heading 'Total and Permanent Disability Benefits.' The first monthly payment shall be made immediately upon receipt by the company of due proof of such disability and subsequent payments shall be made on the first day of each month thereafter. Interest due on any indebtedness under this Policy may be deducted from such monthly income payments.

"Such waiver of premiums and such monthly payment shall be additional to all other benefits and obligations under this Policy and the Policy shall be continued in force and the Monthly Installments of Insurance and of Accidental Death Benefit, if any, less any indebtedness, shall become due and payable at death or maturity in the same manner as if the Insured had actually continued to pay the premiums."

"Proof of continuance of disability.— Notwithstanding the acceptance by the Company of proof of total and permanent disability; the Insured, upon demand by the Company from time to time, but not oftener than once a year after such disability has continued for two full years, for the purpose of verifying that such disability is actually permanent and not temporary, shall furnish due proof that he (or she) actually continues in the state of disability defined above; provided, however, that such demand shall not be made in the case of the 'Recognized Disabilities' specified above other than the loss of the sight of both eyes. In case of failure to furnish such proof, no further premiums shall be waived and no further monthly payments shall be made on account of such disability, but any insurance then remaining under this Policy shall be continued in force subject to the payment by the Insured of any premium or premiums, based on such insurance, the due date of which premium or premiums, as specified on the first page hereof, shall occur thereafter."

The alleged violation of the provisions of the above sections constitute the basis of the present suit. Testimony was introduced to show that plaintiff's occupation at the time of the issuance of the policy was that of a boss plumber sometimes referred to as a master plumber. He came to this country from Austria Hungary when he was a young boy. His total education consisted of three years schooling in some school abroad. Upon arrival here he obtained employment with a lumber company as a laborer; later performing the same duties for the Standard Oil Company of New Jersey. In due course of time he became a pipefitter's helper, which occupation he followed for some time. After leaving the employ of the oil company, he engaged in the plumbing business. He was engaged in that business up to and including the day upon which he allegedly became incapacitated. The proofs disclose he has never engaged in any other occupation other than those above enumerated. The business was conducted from the cellar of his home with the assistance of an occasional laborer whom he had hired. Since his "accident," the business has been turned over to his sons and is being conducted by them. In January, 1935, while installing a range...