Rosenthal v. Colonial Life Ins. Co. of Am.

• Decision Date: 15 April 1935
• Citation: 178 A. 202
• Parties: ROSENTHAL v. COLONIAL LIFE INS. CO. OF AMERICA.
• Court: New Jersey Court of Chancery

178 A. 202

ROSENTHAL

v. COLONIAL LIFE INS. CO. OF AMERICA.

Court of Chancery of New Jersey.

April 15, 1935.

Syllabus by the Court.

1. The question as to whether insured was prevented by disease "from performing any work for compensation or profit," within the terms of an insurance policy providing for waiver of premiums in such event, is one of fact.

2. Total disability is largely a relative question and the pertinent inquiry is, "What did this disease do to this individual in the way of disabling him from performing any work for compensation or profit?" and the answer involves an ascertainment of that individual's training, occupation, capabilities, and physical and mental qualifications.

3. Total disability does not necessarily mean that the insured must be absolutely helpless, and a total disability and waiver of premium clause, being in the language of the insurer, will be construed to the advantage of the insured without doing violence to the wording of such a clause.

Suit by Isaac Rosenthal against the Colonial Life Insurance Company of America.

Decree for complainant.

Endicott & Endicott, of Atlantic City, for complainant.

Edmund C. Gaskill, Jr., of Atlantic City (David R. Brone, of Atlantic City, of counsel), for defendant.

SOOY, Vice Chancellor.

Complainant, in the latter part of 1928, bought insurance from the defendant company and there were two policies issued to him, one for $1,000, dated November 21, 1928, and one for $5,000, dated December 19, 1928, both containing "total and permanent disability benefit" clauses as follows: "If the insured * * * shall become totally and permanently disabled by * * * disease, so that he is and will be prevented thereby for life from performing any work for compensation or profit * * * the Company will waive the payment of all premiums falling due thereafter during such disability of insured."

Complainant claims that he is en titled, to the benefit of this so-called "waiver of premium" clause by reason of physical disability which comes within the provisions thereof; that the defendant company refuses these benefits, threatens to cancel the policies in the event that complainant fails to pay the premiums as provided therein, and therefore prays that this court decree that defendant specifically perform its contract and issue "waiver of all premiums," and that it be decreed that complainant "is totally and permanently disabled and was so totally and permanently disabled as of August 25, 1930; that defendant be restrained from cancelling the policies for non-payment of premiums and be compelled to repay premiums since August 25, 1930."

The matter comes to me on final hearing without any question of jurisdiction being raised.

Counsel for defendant, in their brief, agree that the following facts, as stated by counsel for complainant in their brief, were established at the final hearing:

"1. That the complainant all his life, beginning at the age of eight, was engaged only in one vocation, that is the selling of newspapers.

"2. That about 1925 he developed his own newspaper route whereby he sold and delivered to his customers day in and day out, except Sunday, both editions of the Atlantic City Press and Evening Union. This business was conducted by himself and was chiefly manual and physical in its nature, in that it demanded his carrying a bundle weighing about fifty (50) pounds on his shoulder, consisting of the newspapers and delivering them on foot at the door of each of his customers. This work performed in all kinds of weather required him to get up at about four or four-thirty in the morning, and demanded his attention until about six or seven in the evening, and at this work he averaged a net earning of between thirty-five ($35.00) and forty-five ($45.00) dollars per week, with which he was able to maintain his family of wife and six children.

"3. That at the time he obtained the policies in controversy, and up to August, 1930, he was in excellent physical condition and good health.

"4. That since August, 1930, he has performed no work of any nature and has not earned a single penny in support of his family.

"5. That the one attempt he made to assist his two sons in delivering newspapers resulted in his collapse which required his being carried home.

"6. That he is not a malingerer. This is admitted by defendant's doctors, and no charge to the contrary of course is made by defendant's counsel.

"7. That beginning in August of 1930, he developed an extremely painful condition of bleeding hemorrhoids, which forced him to undergo an operation in Philadelphia, and of course stopped him from performing his vocation.

"8. That when he came back to Atlantic City after the operation he experienced the intense pains in his right arm and across his back and he began to experience the fits which occurred on an average of about three or four times a week for a number of years and now occur about two or three times a week.

"9. That he proceeded to take treatment and to seek relief from various doctors and hospitals. He began by being treated by Doctor Samuel Weiner for about ten months without success. He then went to the Atlantic City Hospital and was there treated first by Doctor Shenfeld, who in turn, turned him over to Doctor Gorson. Doctor Gorson, the nerve specialist, who testified for the defense, caused to be extracted all of the complainant's teeth. No benefit being received complainant then turned to Doctor Mackler (the defense witness) who removed the complainant's tonsils, and finally told him that he could do nothing further for him here and sent him to the Jefferson Hospital in Philadelphia. There he was examined and observed by the various clinics and finally turned over to Doctor Baron who specializes in nervous diseases, and from whom he has now been receiving treatment for a number of years, and to whom he goes for treatment about once a week."

In addition to these admitted facts, the court...