Brod v. Detroit Life Insurance ( 1931 )

May 7, 1925, defendant issued to plaintiff a life insurance policy, with a supplemental agreement attached, containing the provision:

"After one full year's premium shall have been paid and before default in the payment of any subsequent premium hereon, if the insured under the above numbered policy, prior to attaining the age of sixty years at nearest birthday and while this policy is in full force, shall furnish due proof to the company at its home office, that he has become totally and permanently disabled by bodily injury or disease, so that he is and presumably will be permanently, continuously and wholly prevented thereby for life from performing any work for compensation, gain or profit, or from following any gainful occupation, and that such disability has then existed continuously for not less than sixty days, the company will grant the following benefits: * * *

"2. Income to insured: Six months after the receipt of said due proof of disability, the company will pay to the insured if then living, and such disability still continue — one thousand — dollars and a like sum annually thereafter during the life of the insured and the continuance of his disability."

Plaintiff is manager of a corporation conducting several retail stores in Detroit. On September 19, 1925, he had an operation. He was confined to the hospital and his home for a time and then was able to get about. He claims he was wholly incapacitated from work for a year and that, since then, although he has been able to conduct his business, he has been prevented, by the effect of the operation, from doing some of his work. Within the year after the operation, plaintiff filed proof of claim. Defendant denied liability, and this suit is to recover $1,000 for total disability for one year. The court directed a verdict for defendant.

We will assume that plaintiff's testimony raised an issue of fact for the jury upon his claim that he was totally disabled from work for a year and has been partially incapacitated since.

The policy is not ambiguous and there is no occasion for the application of the rule that it will be construed against the insurer. It is not a straight disability contract. It requires that the disability, to be compensable, shall be both total and permanent. Both elements must coexist. Shipp v. MetropolitanLife Ins. Co., 146 Miss. 18 (111 So. 453). A temporary total disability, even for a year, followed by only partial disability, is not within the benefits. Ginell v. PrudentialLife Ins. Co., 237 N.Y. 554 (143 N.E. 740), reversing 205 App. Div. 494 (200 N.Y. Supp. 261).

Plaintiff made no showing at the trial, by medical opinion or otherwise, of the probable duration of his total disability, nor did he present testimony that he had made such showing in his proof of claim. While it is true that the time a disability will run can not be foretold with certainty, there are possibilities and probabilities in connection with injuries and diseases which may be measured more or less accurately by standards based upon experience and which may be shown in evidence. Plaintiff's proof failed entirely in the essential that total disability would presumably be for life, as required by the policy.

Judgment is affirmed, with costs.

WIEST, CLARK, McDONALD, POTTER, SHARPE, and NORTH, JJ., concurred. BUTZEL, C.J., did not sit.