Rose v. N.Y. Life Ins. Co.

• Decision Date: 15 November 1933
• Docket Number: 23643
• Citation: Rose v. N.Y. Life Ins. Co., 127 Ohio St. 265, 187 N.E. 859 (Ohio 1933)
• Parties: Rose v. The New York Life Ins. Co.
• Court: Ohio Supreme Court

187 N.E. 859

127 Ohio St. 265

Rose v. The New York Life Ins. Co.

No. 23643

Supreme Court of Ohio

November 15, 1933

Insurance - Total and permanent disability under life policy - Meaning determined from contract, and not circumstances of conduct when - Proof of temporary disability after termination, not compliance with total disability clause - Notice and proofs of disability not waived by insurer investigating claim.

1. Where the meaning of a contract of insurance against loss resulting from total and permanent disability can be fully and clearly ascertained from the words of the contract itself, the court may not resort to surrounding circumstances or the conduct of the parties for aid in its interpretation.

2. A policy contract which: (1) Provides for waiver of premium payments and the payment of monthly benefits upon proof that the insured is totally and presumably permanently disabled (2) defines total disability so as to include certain irreparable injuries such as the loss of both hands or both feet, and also to include bodily injuries or disease by which the insured is wholly prevented from doing any work, from following any occupation or from engaging in any business for remuneration or profit; (3) provides that the benefits promised shall accrue upon receipt at the company's home office, before default in payment of premium under said policy, of due proof that the insured is totally disabled as above defined, and will be continuously so 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; (4) provides that upon the cessation of a presumably permanent disability the benefits therefor shall cease, is not complied with by proof of a temporary disability which is ended before such proof is made.

3. The policy requirements as to notice and proof of disability are not waived by the insurance company merely because claimant's proof, submitted after the time limit in the policies has expired, shows that the claimant's disability has already ended, and the insurance company thereafter makes an investigation of the claim. To effect a waiver there must be words or conduct showing an intention to abandon or relinquish a known right.

This was an action to compel the payment of benefits under the total disability clauses of certain insurance policies. Prior to 1927, Harry H. Rose was the holder of certain policies of insurance upon his own life, in favor of Florence Rose issued by the New York Life Insurance Company. These policies contained clauses in which the company agreed to pay to the insured specified benefits upon proof of total and permanent disability.

In 1927 Rose took out an additional life insurance policy, to which a new and different form of disability contract was attached and at the same time, for an additional premium, the company canceled the old forms of disability clause in the policies Rose already had, and substituted "riders" carrying the new form of disability contract.

The disability clauses in the old form were as follows:

"1. Disability Benefits shall be effective upon receipt at the Company's Home Office, before default in the payment of premium of due proof that the Insured became totally and permanently disabled after he received this policy and before its anniversary on which the Insured's age at nearest birthday is sixty years.

"Disability shall be deemed to be total whenever the insured becomes wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit, and under this contract disability shall be presumed to be permanent after the Insured has been continuously so disabled for not less than three months and during all of that period prevented from engaging in any occupation for remuneration or profit. The permanent loss of the sight of both eyes, or the severance of both hands or of both feet, or of one entire hand and one entire foot, shall be considered total and permanent disability without prejudice to other causes of disability.

"2. The first income payment shall become due on the first day of the calendar month following receipt of proof of total and permanent disability or proof of continuous total disability for three consecutive months, as above, and succeeding payments shall become due on the first day of each calendar month thereafter."

"5. Recovery from Disability. The Company may from time to time demand due proof of the continuance of such total disability, but not oftener than once a year after such disability has continued for two full years, and upon failure to furnish such proof, or if it shall appear to the Company that the Insured is able to engage in any occupation for remuneration or profit, income payments shall cease and the payment of any premium thereafter falling due shall not be waived."

The part of the new form with which we are particularly concerned provided:

"TOTAL AND PERMANENT DISABILITY * * * * * * *

"New York Life Insurance Company agrees to pay to the Insured

"A monthly Income of Fifty Dollars and to waive payment of premiums under said Policy, as hereinafter provided, upon receipt of due proof that the Insured is totally and presumably permanently disabled before age 60, as hereinafter defined.

"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 and occupation, or from engaging in any business for remuneration or profit, provided such disability occurred after the insurance under this Agreement took effect and before the anniversary of said 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 under said Policy, 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 under said Policy, including the premium for this Agreement, 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 incomes stated above for each completed month from the commencement of and during the period of continuous total disability. If disa- bility results from insanity, payment will be made to the beneficiary in lien of the Insured.

"The total and irrecoverable loss of the sight of both eyes or of the use of both hands or of both feet or of one hand and one foot shall constitute total disability for life."

On December 13, 1929, Rose filed his petition in the court of common pleas of Cuyahoga county, alleging that "he became totally disabled by disease upon and as of the 11th day of January, 1929, and that said total disability then commencing continued from that date to and including the 21st day of April, 1929," and that thereafter he gave to the company notice of such...