Nickolopulos v. Equitable Life Assur. Soc. of the U.S.

• Decision Date: 13 May 1933
• Docket Number: No. 439.,439.
• Citation: 166 A. 178
• Parties: NICKOLOPULOS v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.
• Court: New Jersey Supreme Court

166 A. 178

NICKOLOPULOS

v. EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES.

No. 439.

Supreme Court of New Jersey.

May 13, 1933.

Appeal from District Court of Orange County.

Action by Thomas K. Nickolopulos against the Equitable Life Assurance Society of the United States. From judgment for plaintiff, defendant appeals.

Reversed.

Argued October term, 1932, before TRENCHARD, CASE, and BROGAN, JJ.

Collins & Corbin, of Jersey City (Edward A. Markley, of Jersey City, of counsel), for appellant.

Lum, Tamblyn & Colyer, of Newark (James Raymond Berry, of Newark, of counsel), for respondent.

PER CURIAM.

This appeal brings up for review a judgment for $500 recovered by the plaintiff be low. The following facts appear from the record:

The plaintiff was the owner of a contract of insurance, which, besides insuring his life, contained a covenant that entitled him to the sum of $250 a month if he should become permanently and totally disabled. The disability clause within which the plaintiff contends he has made out a proper case is as follows: "Disability shall be deemed to be total when it is of such an extent that the Insured is prevented thereby from engaging in any occupation or performing any work for compensation of financial value, and such total disability shall be presumed to be permanent when it is present and has existed continuously for not less than three months. * * *" It clearly appears that the plaintiff was wholly and permanently disabled some time during the year 1929, suffering from a bone disease known as osteomyelitis. It is not disputed that he received compensation from the defendant corporation up to November, 1931, at which time the defendant stopped making payments; that the defendant did not make payments of $250.00 per month for November and December, 1931; hence this suit under the policy.

The plaintiff proved that he had been in the hospital during the greater part of the year 1929; had had several operations, his leg for a great part of that period being in a cast. In February, 1931, he went to another hospital, remaining until some time in April of that year. It also appears that he left the hospital and went to the seashore thereafter, returning in November, 1931, at which time he was able to walk with the aid of crutches.

There is no very substantial dispute about the facts in the case; the substance of the appeal being that the trial court, in charging the jury, said: "In order to recover for total disability, the...