Mitchell v. Equitable Life Assur. Soc. of U.S.
| Decision Date | 24 January 1934 |
| Citation | 172 S.E. 495,205 N.C. 721 |
| Parties | MITCHELL v. EQUITABLE LIFE ASSUR. SOC. of UNITED STATES. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Cranmer, Judge.
Action by Clarence E. Mitchell against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff defendant appeals.
No error.
Under life policy providing disability was presumably permanent when it existed 3 months, insured held entitled to total and permanent disability insurance where disability existed 16 1/2 months, though insured later recovered.
See also, 172 S.E. 497.
Civil action to recover on a total and presumably permanent disability clause in a policy of life insurance.
Upon the payment of the first annual premium of $471.80, the defendant, on May 28, 1930, issued to the plaintiff a $10,000 life insurance policy, containing, among other things, the following provisions: "And further, if the Insured before age 60 becomes totally and presumably permanently disabled as defined in the Total and Permanent Disability provision on the third page hereof, the Society will, subject to the conditions of such provision, waive subsequent premiums and pay to the Insured a disability income of One Hundred Dollars a month."
The provisions on the third page of the policy, referred to in the above clause, are as follows: "Definition: For the purpose of this policy: (A) Disability is total when it prevents the Insured from engaging in any occupation or performing any work for compensation of financial value, and (B) Total Disability is presumably permanent *** (2) When it has existed continuously for three months--then from the date of the expiration of such three months."
Attached to the policy is a rider which provides: "It is hereby agreed that when Total Disability has existed continuously for three months it will be regarded by the Society as presumably permanent from the date of completion of one month of continuous Total Disability (herein called the Effective Date) notwithstanding Sub-paragraph (2) of Paragraph (B) of the provision for Total and Permanent Disability Benefits."
This suit was instituted October 1, 1932, and the jury has found from the evidence offered on the hearing that the plaintiff who is 46 years old, became totally disabled, within the meaning of the policy and while it was in force, on January 1, 1931, which total disability continued until May 15, 1932 that due proof of such disability was submitted to the defendant by the plaintiff as required by the terms of the policy, and that plaintiff was entitled to recover according to the terms of the presumably permanent disability clause.
Defendant appeals, assigning errors.
S. Brown Shepherd, of Raleigh (Charles U. Harris, of Raleigh, of counsel), for appellant.
J. M. Broughton, of Raleigh, for appellee.
It may be observed in limine that while the evidence on the issue of plaintiff's total disability from January 1, 1931, to May 15, 1932, and the submission or waiver of due proof thereof, is somewhat equivocal, nevertheless it is sufficient to carry the case to the jury so far as these questions are concerned. Green v. Casualty Co., 203 N.C. 767, 167 S.E. 38; Bulluck v. Ins. Co., 200 N.C. 642, 158 S.E. 185; Metts v. Ins. Co., 198 N.C. 197, 151 S.E. 195; Brinson v. Ins. Co., 195 N.C. 332, 142 S.E. 1; Fields v. Assurance Co., 195 N.C. 262, 141 S.E. 743; Lee v. Ins. Co., 188 N.C.
538, 125 S.E. 186; Buckner v. Ins. Co., 172 N.C. 762, 90 S.E. 897; Taylor v. Ins. Co., 202 N.C. 659, 163 S.E. 749; Gerringer v. Ins. Co., 133 N.C. 407, 45 S.E. 773.
The defendant stressfully contends that whatever presumption of permanency of the disability may have existed prior to May 15, 1932, it was clearly rebutted on that date by the plaintiff's recovery, and that his subsequent continued good health demonstrates it was only temporary and is therefore a bar to the present action. Grenon v. Ins. Co., 52 R.I. 456, 161 A. 229. It will be readily conceded that the position of the defendant in this respect is unassailable, if the policy in suit only insures against disability which is both total and permanent. Ginell v. Prudential Ins. Co., 237 N.Y. 554, 143 N.E. 740; Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707, 79 A. L. R. 852; Hawkins v. Ins. Co., 205 Iowa, 760, 218 N.W. 313; Shipp v. Ins. Co., 146 Miss. 18, 111 So. 453; Brod v. Ins. Co., 253 Mich. 545, 235 N.W. 248; Job v. Ins. Co. (Cal. Super.) 22 P.2d 607.
But, as we understand the clause in question, it insures the plaintiff not only against disability which is both total and permanent, but also against disability which is total and presumably permanent, and then defines what is meant by "presumably permanent." The rider attached to the policy provides that "when total disability has existed continuously for three months it will be regarded by the Society as presumably permanent from the date of completion of one month of continuous total disability." Thus the meaning of the policy is defined by its own term, and it goes beyond total and permanent disability. Bagnall v. Travelers' Ins. Co., 111 Cal.App. 714, 296 P. 106; Dietlin v. Ins. Co., 126 Cal.App. 15, 14 P.2d 331, 335, 15 P.2d 188; Penn Mut. Life Ins. Co. v. Milton, 160 Ga. 168, 127 S.E. 140, 40 A. L. R. 1382.
In this respect, the case of Kurth v. Continental L. Ins. Co., 211 Iowa, 736, 234 N.W. 201, 202, is practically on all fours with the one at bar, and, in dealing with the expression "presumably permanent," the court said:
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