Perlman v. N. Y. Life Ins. Co

• Decision Date: 14 July 1932
• Docket Number: 27-1932
• Parties: Perlman, Appellant, v. N. Y. Life Ins. Co
• Court: Pennsylvania Superior Court

161 A. 752

105 Pa.Super. 413

Perlman, Appellant, v. N. Y. Life Ins. Co

No. 27-1932

Superior Court of Pennsylvania

July 14, 1932

Argued April 28, 1932

Appeal by plaintiff from order of C. P., Allegheny County, July T. 1929, No. 2706, in the case of Benjamin Perlman v. New York Life Insurance Company, a corporation.

Assumpsit on policy of insurance. Before Marshall, J.

The facts are stated in the opinion of the Superior Court. The relevant portions of the policy are as follows:

"And upon receipt of due proof that the insured is totally and presumably permanently disabled before age 60, as defined under 'Total and Permanent Disability' on the second page hereof, the Company agrees to pay to the insured Two Hundred Fifty ($ 250.00) Dollars each month, and to waive payment of premiums, as provided therein.

"Disability shall be considered total whenever the insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit, provided such disability occurred after the insurance under this policy took effect and before the anniversary of the policy on which the insured's age at nearest birthday is sixty.

"Upon receipt at the Company's Home Office, before default in payment of premium, of due proof that the insured is totally disabled as above defined, and will be continuously so totally disabled for life, or if the proof submitted is not conclusive as to the permanency of such disability, but establishes that the insured is, and for a period of not less than three consecutive months immediately preceding receipt of proof has been, totally disabled as above defined, the following benefits will be granted:

"(a) Waiver of Premium. -- The Company will waive the payment of any premium falling due during the period of continuous total disability, the premium waived to be the annual, semi-annual or quarterly premium according to the mode of payment in effect when disability occurred.

"(b) Income Payments. -- The Company will pay to the insured the monthly income stated on the first page hereof ($ 10 per $ 1,000 on the face of this policy) for each completed month from the commencement of and during the period of continuous total disability."

Verdict for plaintiff in the sum of $ 1,781. On motion, however, the court entered judgment for defendant non obstante veredicto. Plaintiff appealed.

Error assigned, among others, was the order of the court.

Affirmed.

Arthur M. Grossman, for appellant.

William H. Eckert, and with him Louis H. Cooke and Smith, Buchanan Scott and Gordon, for appellee.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Keller, J.

The life insurance policy sued upon is not a contract of health insurance; it provides for the payment of benefits for total and permanent disability, and better to define or make clear what is meant by "total and permanent disability" it sets up certain standards which upon due proof being given the company that they exist -- that is, are existing at the time such proof is made, not, did exist in the past -- the company agrees that they shall be considered as "total and permanent disability" and entitle the insured to benefits as such, until such time as they may be relieved and the disability terminated.

The relevant portions of the policy will be found in the statement of the reporter.

An examination of these extracts will make it clear that the provisions for proof of disability are all in the present tense, or of a present and prospective character. Thus (italics ours), "upon receipt of due proof that the insured is totally and presumably permanently disabled;" "Disability shall be considered total whenever the insured is so disabled by bodily injury or disease that he is wholly prevented from...