Wolf v. Prudential Ins. Co. of Am.

• Decision Date: 24 March 1939
• Docket Number: No. 8031.,8031.
• Citation: 4 A.2d 897
• Parties: WOLF v. PRUDENTIAL INS. CO. OF AMERICA.
• Court: Rhode Island Supreme Court

4 A.2d 897

WOLF

v. PRUDENTIAL INS. CO. OF AMERICA.

No. 8031.

Supreme Court of Rhode Island.

March 24, 1939.

Exceptions from Superior Court, Providence and Bristol Counties; Walter Curry, Judge.

Action in assumpsit by Friedrich Wolf against the Prudential Insurance Company of America to recover disability benefits allegedly due under life insurance policies. The plaintiff was nonsuited, and he brings exceptions.

Exceptions overruled and case remitted for entry of judgment on the nonsuit.

Bellin, Levin & Alprin, of Providence, for plaintiff.

McGovern & Slattery and James A. Higgins, all of Providence, for defendant.

CAPOTOSTO, Justice.

This is an action in assumpsit to recover disability benefits alleged to be due under two policies of life insurance issued by the defendant. The case was tried before a justice of the superior court sitting with a jury and, at the conclusion of the plaintiff's evidence, on motion of the defendant, the plaintiff was nonsuited. The case is before us on the plaintiff's exception to this ruling and on two other exceptions taken during the trial.

The facts in evidence are practically undisputed. The plaintiff was the insured in two twenty-year life endowment policies of the defendant company; one, for $1500, dated January 18, 1930; and the other, for $2000, dated December 11, 1930. Each policy provides for the payment of total and permanent disability benefits. The contract of the parties respecting these benefits is clearly set forth in each policy. Excluding minor variations that are not pertinent in this case, the controlling provisions of that contract are the same in each instance. Hereafter, for convenience, the term "policy" and "contract" will include both policies and both contracts for disability benefits.

Among the provisions in the policy as to the payment of benefits for disability is one which requires that the disability be total and also permanent or deemed to be permanent; and another is one which requires that proof of such disability be submitted to the company during the existence of total disability. The provisions relating to the waiver of premiums or the period during which, under certain conditions, the total disability shall be deemed to be permanent need not be specifically mentioned, as they have no material bearing on the decisive issue in the instant case.

The plaintiff, who was fifty-two years of age at the time of the trial in April 1938, testified that, on December 8, 1933, while he was working as a mechanic for the Mack Truck Company of Providence, fixing a motor, the flywheel of the motor, which was being lifted by himself and two other men, fell on his right hand and severely injured it. He was immediately taken to a hospital where his right index finger was amputated. The diagnosis on discharge from that institution after ten days was "compound comminuted fracture of proximal phalanges of the second and third fingers of the right hand, plus multiple contusions and lacerations of hand. Condition on discharge: Improved." He returned to the hospital for treatment from time to time until January 1935, following which date he himself treated the hand by bathing and massage until September of that year, when he went to work for the Abrasive Tool Company. Since then he has been gainfully employed at his trade, his work with that concern being of a lighter nature than what he was doing at the time of his injury.

The undisputed evidence further shows that the premiums on the policy were always paid at the defendant's office in Providence, and that they were so paid regularly up to the time that this action was instituted. On December 11, 1933, three days after the plaintiff was injured, the plaintiff's wife went to the defendant's office to pay a premium which was due. She testified that she tried to pay the premium with a check payable to her husband and some cash; that the cashier, observing that the check was not endorsed, called her attention to this fact, whereupon she informed the cashier that her husband was unable to endorse it because he was in the hospital; that the cashier then called the manager, to whom the witness explained why her husband could not endorse the check and described to him the injury that he had sustained; that the manager advised her to try and have her husband endorse the check with his left hand; that she did as he advised and that a few days later she brought the endorsed check to the defendant's office and received the premium receipt.

It was not until July 1937 that the plaintiff made claim for disability benefits under the policy. By this time he had been gainfully and continuously employed for more than eighteen months. On August 11, 1937, the defendant disclaimed liability in writing and this suit was thereafter instituted.

The terms of the contract for disability benefits are clearly and plainly set out in the policy. The plaintiff makes no claim of fraud, concealment or deception in the issuance of the policy and there is no evidence that he is illiterate. In the circumstances, we must give the pertinent language in the policy its usual and ordinary meaning. Grenon v. Metropolitan Life Ins. Co., 52 R.I. 453, 161 A. 229. However unfortunate...