Manzi v. Provident Mut. Life Ins. Co.

• Decision Date: 30 November 1956
• Citation: 335 Mass. 71,138 N.E.2d 581
• Parties: Arthur S. MANZI v. PROVIDENT MUTUAL LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 581

138 N.E.2d 581

335 Mass. 71

Arthur S. MANZI v. PROVIDENT MUTUAL LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Sept. 25, 1956.

Decided Nov. 30, 1956.

Thomas S. Carey, Worcester, for plaintiff.

Sumner W. Elton, Boston, for defendant.

Before RONAN, SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.

CUTTER, Justice.

This is an action of contract to collect total and permanent disability benefits (from December 11, 1945, to the date of the writ) under an agreement supplemental to a policy of life insurance on the plaintiff's life. At the close of the evidence, the judge denied the defendant's motion for a directed verdict and the defendant duly excepted. There were verdicts for the plaintiff. The case is here on the defendant's bill of exceptions.

The defendant claims also to have taken exception to one portion of the charge to the jury and to the exclusion of one document offered in evidence. The bill of exceptions, as the defendant's brief admits, does not show that these exceptions were in fact claimed. They have not been considered. Concannon v. Commissioner of Public Safety, 324 Mass. 503, 508, 87 N.E.2d 216, and cases cited. See Posell v. Herscovitz, 237 Mass. 513, 517, 130 N.E. 69; City of Quincy v. Wilson, 305 Mass. 229, 231, 25 N.E.2d 369.

The insurance policy provides in part: 'The Company agrees, upon receipt of due written proof that the Insured has * * * before the anniversary * * * of said Policy nearest the Insured's sixtieth birthday * * * become totally disabled as the result of bodily injury or disease so that he is prevented thereby from engaging in any business or occupation and performing any work for compensation, gain or profit, and that such total disability has already continued uninterruptedly for * * * al least four months * * * (1) To pay to the Insured an income payment of Two Hundred Dollars for each completed month of such continuous total disability beginning with the fourth such month * * *. Written notice of claim * * * must be presented to and received by the Company at its Home Office * * * during the continuance of total disability and not later than one year after the anniversary of the date of said Policy nearest the Insured's sixtieth birthday, otherwise the claim shall be invalid; provided, however, that failure to give such notice within such times shall not invalidate any claim if it shall be shown that it was not reasonably possible to give such notice within such times and that such notice was given as soon as was reasonably possible.' The anniversary date of the policy nearest the plaintiff's sixtieth birthday was October 2, 1946. Under the quoted provisions of the policy, therefore, it was (among other things not here relevant) necessary for the plaintiff, if he was to collect disability payments, to submit first (apparently without limit of time, see Cooper v. Prudential Ins. Co., 329 Mass. 301, 303, 107 N.E.2d 805) due written proof that the plaintiff before October 2, 1946, had become totally disabled so that he was prevented from engaging in any business or performing any work for compensation, and second written notice of claim to the company's home office (a) during the continuance of the disability (b) not later than one year after October 2, 1946.

The principal contention of the defendant, under these policy provisions, is that the plaintiff did not file seasonable written proof that the event upon which the defendant agreed to pay disability benefits had occurred. The facts upon this aspect of the case (viewed as favorably to the plaintiff as a jury could properly view them) are as follows: The plaintiff was a funeral director in business for himself in Worcester. In his work for many years prior to his admission to a hospital in December, 1945, he was in good health and attended, for long hours each day, to all branches of his business, including the moving of caskets and other heavy work.

On December 11, 1945, he suffered abdominal pains and was taken unconscious to a hospital with a ruptured appendix. He was confined to the hospital until January 17, 1946, and an operation and blood transfusions were necessary. Peritonitis set in. He was inactive at home for about a month and a half and then, on medical advice, went to Florida for six or seven weeks. From then on, he was weak and could do little. During this period, he suffered pains near his chest and heart, once or twice a week, particularly after walking or having dinner. He testified to other symptoms which might indicate heart trouble.

After returning from Florida he visited his office once a week, but only for thirty to forty minutes at a time, and was obliged to hire his son to run the business, and to take on additional employees. He tried to do light work for a period, which could have been found to have lasted only a week or two, but he had 'to quit' because 'It would affect his heart and he would get pains.' This work consisted of some clerical work, giving advice, consulting occasionally with his son, signing a few checks when his son was not around and arranging flowers at the funeral home.

In November, 1946, he had a serious heart attack. Prior to that he had cold sweats and severe pains in the chest, with a bad attack of these symptoms in October, and less severe, 'little' attacks earlier, although severe enough 'to stop him from working.'

A competent cardiologist who first examined the plaintiff June 4, 1947, recorded heart symptoms then of five to six months' duration and made a diagnosis of coronary artery disease and angina pectoris. He give the opinion that the surgery performed on the plaintiff on December 14, 1945, could have precipitated or aggravated the plaintiff's condition, bringing to the surface symptoms which had developed over the course of many years. Efforts at rehabilitation of the plaintiff, this witness stated, had proved futile because of adverse reactions when the plaintiff attempted to work.

Another medical witness testified that he took care of the plaintiff in December, 1945, when he was in the hospital and had advised him periodically thereafter. On April 16, 1946, the plaintiff stated to this witness that he had done no work, felt tired and suffered from shortness of breath. On November 5, 1946, the plaintiff reported symptoms, which the witness diagnosed as angina pectoris, and thereafter reports of other attacks were made. The witness gave the opinion that the angina pectoris developed as 'a direct consequence of the trauma inflicted * * * at the time of the operation.' Although the witness did not make a diagnosis of a heart condition until November, 1946, there were complaints of heart trouble before that month. The witness expressed the opinion that the plaintiff had been totally disabled from performing any work for compensation since December 11, 1945.

On all the evidence which has been summarized, a jury could have found that the plaintiff was totally disabled, within the meaning of that term as used in the policy, prior to October 2, 1946, the anniversary date of the policy nearest the plaintiff's sixtieth birthday. The 'light work' which the plaintiff admittedly did was not of such a substantial and continuing character as to require a directed verdict for the defendant. Zakon v. Metropolitan Life Ins. Co., 328 Mass. 486, 489-490, 104 N.E.2d 603, and cases there cited. ...