Pannone v. John Hancock Mut. Life Ins. Co.

• Decision Date: 18 December 1931
• Docket Number: No. 6932.,6932.
• Citation: 157 A. 876
• Parties: PANNONE v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: Rhode Island Supreme Court

157 A. 876

PANNONE

v. JOHN HANCOCK MUT. LIFE INS. CO.

No. 6932.

Supreme Court of Rhode Island.

Dec. 18, 1931.

Exceptions from Superior Court, Providence and Bristol Counties; Edward W. Blodgett, Presiding Justice.

Action by Giovanni Pannone against the John Hancock Mutual Life Insurance Company. To review a decision of the superior court sitting without a jury in favor of plaintiff, defendant brings exceptions.

Exceptions sustained.

O'Shaunessy & Cannon, of Providence, for plaintiff.

George Hurley, Walter V. Moriarty, and Walter V. Connly, all of Providence, for defendant.

HAHN, J.

This is an action of assumpsit to recover disability benefits under a contract supplementary to a life insurance policy issued to the plaintiff by the defendant company. The case was tried in the superior court by a justice sitting without a jury and decision was rendered for the plaintiff in the sum of $500. The case is before us on defendant's exceptions to the decision.

The defendant, an insurance corporation, issued to the plaintiff an endowment policy of insurance in the sum of $10,000. Attached to and forming a part of this policy is a supplementary contract, described as a "Disability Supplement," which for an additional premium provides for payment to the plaintiff of certain benefits in the event of total and permanent disability. The terms of said supplement are as follows: "If, after the payment of the initial premium under this contract, * * * the Insured A. Has become totally and permanently disabled either physically or mentally so as to be continuously and wholly prevented for life, from engaging in any occupation or employment for wage or profit, or B. In the absence of conclusive proof of permanency of disability, if due proof as aforesaid, shall be presented that the Insured has been totally disabled by bodily injuries or disease, and has been thereby prevented from engaging in any occupation or employment for wage or profit for a period of not less than ninety consecutive days, the Company will grant the following benefits: 1. Waive the payment of further premiums due after the commencement of such disability, and 2. Pay to the Insured * * * from the commencement of disability and throughout its continuance, a sum equal to one per centum of the face amount of the policy exclusive of any policy additions." The decision of the court below was based upon plaintiff's claims under paragraph B of the "Disability Supplement."

In 1929 plaintiff was the proprietor of a market and grocery store about five minutes' walk from his home. The business was conducted with the assistance of his brother-in-law and a boy who worked as a helper on Saturdays. In September, 1929, a few months after obtaining the policy of insurance now sued upon, plaintiff was seized with the illness which he alleges prevented him from working from September 10, 1929, to March 2, 1930, which disability forms the basis of this action.

Plaintiff testified that he began to experience trouble with his hands the latter part of August, 1929, that his hands became blue and swollen, causing him considerable pain, and that by the middle of September his fingers could not be flexed because of the swelling. On September 10, 1929, he consulted Dr. Fidanza, who testified that plaintiff's hands were swollen and his fingers flexed with difficulty when plaintiff first came to him, but that by December, 1929, plaintiff was much improved and able to flex his fingers.

The doctor further testified that he did not tell plaintiff to stop work, but advised him not to handle frozen meats at his store, since that was the probable cause of plaintiff's trouble.

According to plaintiff's testimony, he had recovered from his disorder and had been back at work for eight and a half months at the time of the trial, November 17, 1930.

It appeared in evidence that plaintiff was out and about during the period for which he claims disability benefits. He went to the doctor's office for treatment, never requiring attendance at his own house. He spent some of his time at a club situated next door to his store. His brother-in-law testified that it was plaintiff's practice to go into the store to see how business was going whenever he went out for a walk. Each night the cash receipts were turned over to plaintiff, who went, himself, to deposit them in his checking account in the Union Trust Company at Olneyville Square,...