NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS. v. Cohen

• Decision Date: 06 April 1936
• Docket Number: No. 256.,256.
• Citation: 83 F.2d 163
• Parties: NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS., v. COHEN.
• Court: U.S. Court of Appeals — Second Circuit

83 F.2d 163 (1936)

NEW ENGLAND MUT. LIFE INS. CO. OF BOSTON, MASS., v. COHEN.^*

No. 256.

Circuit Court of Appeals, Second Circuit.

April 6, 1936.

Frederick E. Draper, of Troy, N. Y., for defendant-appellant.

Coplin Yaras, of Albany, N. Y., for plaintiff-appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

This is a removed action which was originally brought in the New York Supreme Court, Albany county, by service and summons on November 2, 1934, by a citizen of New York against a Massachusetts corporation to recover disability payments alleged to be due and unpaid according to the terms of an insurance policy issued by the defendant to the plaintiff upon his life.

The policy, dated May 29, 1924, was written upon the annual premium basis, and all premiums up to and including that payable in 1928 were paid in full. No premium was paid in 1929 or thereafter.

The alleged failure of the defendant to comply with the provisions of the following clause in the policy is the basis of this suit.

"Waiver of Premiums, and Income during Total and Permanent Disability. — If the Insured, before attaining the age of sixty-five years, provided premiums have been duly paid and this Policy is then in full force, becomes physically or mentally incapacitated to such an extent as to be wholly and permanently unable to engage in any occupation or profession or to perform any work for compensation, gain or profit; * * * and after such disability has existed for ninety days, shall furnish due proof thereof to the Company, at its Home Office, the Company will waive the payment of any premium, thereafter due upon this Policy during the continuance of such disability. Upon acceptance of such proof, and during the continuance of such disability, the Company will also pay to the Insured an income of Fifty Dollars a month.

"The Company shall have the right at any time, but not oftener than once a year, to require due proof by an examination of the Insured by its duly appointed Medical Examiner, of the continuance of the disability. If the Insured shall so far recover as to be able to engage in any occupation or profession or to perform any work for compensation, gain or profit, no further premium will be waived nor monthly income paid; and all premiums thereafter falling due shall be paid by the Insured, in conformity with the terms of the policy. * * *"

The policy also provided that "No waiver of the conditions of this policy shall be valid unless made in writing and signed by the President, Vice-President, Secretary or an Assistant-Secretary of the Company."

The plaintiff was a fur cutter who also sold insurance as an agent for the defendant and for the Union Mutual Life Insurance Company of Portland, Me. He lived and worked in Albany and Troy, N. Y., most of the time after the policy was issued until his health began to fail in January, 1928, because of pulmonary tuberculosis. In March of that year he consulted Dr. Rossman in Albany, and was advised to have X-ray pictures taken of his chest at the Albany Hospital. That was done by Dr. Howard at the hospital on May 6, 1928. He never consulted Dr. Rossman after that. It was shown that the use of X-ray photography was the best way "to disclose the presence of the disease and to outline its extent and distribution." The X-ray, as interpreted by Dr. Howard on the day it was taken, showed, "Parenchymatous infiltration in the upper third of the left lung and in the supra and infra clavicular regions of the right lung, suggesting tuberculosis."

The plaintiff remained at the Albany Hospital for about twenty-four hours at this time. He later spent several weeks in the summer of 1928 in a sanitarium for the treatment of tuberculosis in the Catskill Mountains. At the trial the doctors already named and a Dr. Corning, who first examined him in August, 1934, all testified in behalf of the plaintiff that he was suffering from tuberculosis that totally incapacitated him from doing any kind of work. The evidence showed that tuberculosis of the chest and lungs is often arrested, and, when it has been, the afflicted person often becomes able to work. There was evidence that the plaintiff had not improved, and that he had not been able to work since May 6, 1928, but the contention that such condition was permanent was rather thinly supported by the medical evidence. However that may be, we do not think the judgment can stand anyway in the face of lack of due proof of disability while the clause was kept in force by the payment of premiums.

A condition precedent to the liability of the defendant to waive the payment of future premiums and make disability payments under the clause above quoted was the receipt of due proof at its home office of the total and permanent disability of the plaintiff and its then duration for at least ninety days. What was actually done to comply with this requirement was not in dispute.

In January, 1929, the...