Rosemont v. Equitable Life Assur. Soc. of U.S.

• Decision Date: 13 September 1938
• Citation: 16 N.E.2d 654,301 Mass. 139
• Parties: LEON ROSEMONT v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

301 Mass. 139

16 N.E.2d 654

LEON ROSEMONT v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES.

Supreme Judicial Court of Massachusetts, Berkshire.

September 13, 1938

February 10, 1938.

Present: FIELD, C.

J., DONAHUE, QUA DOLAN, COX, & RONAN, JJ.

Insurance Disability.

A finding that up to the time of the trial an insured was "permanently unable to engage in any occupation or perform any work for compensation" within a policy of disability insurance was warranted by evidence that he suffered from coronary sclerosis and could not work without risk of a fatal attack and that his disease "does not get better," though there was evidence that against medical advice he had tried the experiment of light office work for a short time, with harmful results, and though there was no direct evidence as to his condition or activities during the five months preceding the trial.

CONTRACT. Writ in the Superior Court dated November 23, 1935. There was a finding for the plaintiff by Burns, J., in the sum of $11,267.07. The defendant alleged exceptions.

The case was argued at the bar in February, 1938, before Rugg, C.J., Donahue Qua, & Dolan, JJ. After the death of Rugg, C.J., the case was submitted on briefs to Field, C.J., Cox, & Ronan, JJ.

M. B. Warner, for the defendant. F. M. Myers, for the plaintiff.

QUA, J. This action is brought to recover disability payments upon two policies of insurance, one being a "disability policy" and the other an "ordinary life policy" which also contains disability provisions. The parties stipulated that the court might determine their rights up to the date of the decision as if the writ were issued on that day. The decisive question is whether the evidence was adequate to support findings of disability within the terms of the two policies, continuing to the date of the decision in the Superior Court.

The first policy provides indemnity "if the insured as the result of injury or disease is permanently unable to engage in any occupation or perform any work for compensation of financial value." The disability provisions of the second policy become operative "if the insured is and will be wholly and presumably permanently unable to engage in any occupation or perform any work for compensation of financial value."

We do not discuss the effect of the auditor's report, although his findings were generally favorable to the plaintiff, as the evidence at the trial apart from the auditor's report was ample to support the judge's finding as to both policies. There was evidence that the plaintiff was suffering from "coronary sclerosis," which "does not get better, once it is established"; that he was "totally disabled from performing any work whatsoever physical or mental"; that he could not work without risk, as any excitement or effort might precipitate an attack, and "we never know which attack is going to be fatal"; and that his condition was permanent with no prospect of recovery. This...