Mosby v. Mutual Life Ins. Co. of N. Y.

• Decision Date: 22 March 1950
• Docket Number: No. 31167,31167
• Citation: 92 N.E.2d 103,405 Ill. 599,18 A.L.R.2d 1054
• Parties: , 18 A.L.R.2d 1054 MOSBY v. MUTUAL LIFE INS. CO. OF NEW YORK.
• Court: Illinois Supreme Court

Page 103

92 N.E.2d 103

405 Ill. 599, 18 A.L.R.2d 1054

MOSBY v. MUTUAL LIFE INS. CO. OF NEW YORK.

No. 31167.

Supreme Court of Illinois.

March 22, 1950.

Rehearing Denied May 15, 1950.

McKinley & Price, of Chicago, for appellant.

Winston, Strawn, Shaw & Black, of Chicago (Louis W. Dawson, New York City, George B. Christensen, and Neil McKay, Chicago, of counsel), for appellee.

DAILY, Justice.

William E. Mosby, plaintiff-appellant, filed suit in the circuit court of Cook County against Mutual Life Insurance Company of New York, defendant-appellee, to recover disability income with interest, alleged to be due him under two policies, from May 10, 1946, to September 17, 1947, the date of his suit. On the pleadings alone, he recovered judgment in the circuit court, which was reversed by the Appellate Court, and we have granted leave to appeal.

The question for decision here is whether, under the terms of the policies, the insured, in the event of total and permanent disability before age of sixty, was required by the terms of the policies to furnish due proof thereof to the company at its home office before he attained the age of sixty years in order to entitle him to recover the disability benefits, or whether the disability, alone, is the condition precedent on which liability of the insurer depends.

The amended complaint as amended alleged the issuance of two insurance policies by the defendant on the life of the plaintiff, each of which also provided for disability payments. A copy of each policy was attached to and became a part of the amended complaint as amended. Policy No. 3396323 dated December 13, 1924, contained the following:

'Benefits in the Event of Total and Permanent Disability Before Age 60.

'When Such Benefits Take Effect.-If the Insured, after payment of premiums for at least one full year, shall, before attaining the age of sixty years and provided all past due premiums have been duly paid and this Policy is in full force and effect, furnish due proof to the Company at its Home Office either (a) that he 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, or (b) that he has suffered any of the following Specified Disabilities' (which shall be considered total and permanent disabilities hereunder), namely, the entire and irrecoverable loss of the sight of both eyes or the severance of both entire hands or of both entire feet or of one entire hand and one entire foot, the Company, upon receipt and approval of such proof, will grant the following benefits:'

The benefits were then enumerated, one of which is as follows:

'1. Waiver of Premium.-The Company will, during the continuance of such disability, waive payment of each premium as it becomes due, commencing with the first premium due after approval of said due proof. Any premium due prior to such approval by the Company must be paid in accordance with the terms of the Policy, but if due after receipt of said due proof, will if paid, be refunded upon approval of such proof.'

The other policy numbered 3993549 and dated June 4, 1928, contained a like provision, and, among other provisions, the following:

'Supplementary Benefits to Section Entitled 'Benefits in Event of Total and Permanent Disability before Age 60'.

'Benefits if Proof Delayed and no Premium in Default.-If, while no premium is in default, the proof furnished the Company under the section providing for 'Benefits in Event of Total and Permanent Disability before Age 60' is such as to entitle the Insured to the Disability Benefits provided for therein, and if due proof is also furnished the Company that such disability has been continuous since its beginning, the Company will;

'(a) Begin the monthly income payments provided for in such section as of the end of the first completed month of such disability if earlier than the date of receipt of such proof instead of as of the date of receipt of such proof, and,

'(b) Return any premium due after the beginning of such disability which has been paid during the continuance thereof.'

In addition each policy contained a provision in substance as follows: 'If the Insured shall be totally disabled as defined in this policy for a continuous period of not less than ninety days, such disability shall, during its further continuance, be presumed to be permanent, * * *.'

The amended complaint as amended then alleged that while the policies were in full force and effect plaintiff was, on or about the 10th day of May, 1946, stricken by cerebral hemorrhage and sustained a paralysis upon the left side of his body and as a result thereof was confined to the hospital for a period of three weeks and then to his bed at home during the summer of 1946 and most of the following winter; that plaintiff did not make claim under the aforesaid provisions of his policies until on or about June 1, 1947, although he had been totally incapacitated by the cerebral hemorrhage from its inception and had been unable to perform any work for compensation, gain or profit, but that he did not know until on or about June 1, 1947, that his condition resulting from the said hemorrhage would permanently and totally and continuously disable and prevent him from performing any work for compensation, gain or profit, and from following any gainful occupation, or that his condition would not improve sufficiently to permit him to again perform work for compensation, gain or profit, or from following a gainful occupation; that on or about June 1, 1947, it became manifest to both plaintiff and his medical adviser that his condition was such that he was both permanently and totally disabled so that he was and had been permanently, continuously and wholly disabled from performing any work for compensation, gain or profit and from following any gainful occupation; that such condition had continuously existed since May 10, 1946, and would continue in the future, and thereupon plaintiff made claim upon the defendant for the benefits as provided under the policy for disability benefits; that notwithstanding the fact that plaintiff actually became totally and permanently disabled from the date of said hemorrhage and that such condition continued and existed since that date, and notwithstanding the fact that plaintiff did not attain the age of sixty years until February 5, 1947, the defendant has nevertheless wrongfully denied liability for the payment of disability benefits as in and by said policies of insurance provided, for the alleged reason that the plaintiff did not furnish due proof of such disability before attaining the age of sixty years.

The defendant moved to strike the amended complaint as amended upon the grounds that it failed to allege a cause of action; that it failed to allege that plaintiff, before attaining age sixty, furnished defendant due proof of total and permanent disability as required by said policies, and that the excuse tendered by said amended complaint for failure to file due proof within the time required by the said policies is not sufficient in law. The circuit court overruled the motion to dismiss and entered judgment,...