Ammons v. Equitable Life Assurance Society of the United States ( 1933 )

BnoomoN, J.

The principles of law applicable to the facts are well settled and the merits of this cause rest solely upon an interpretation of the evidence in the record.

In order to recover the benefits provided in the policy it was necessary for plaintiff to offer evidence tending to show: (1) permanent disability, and (2) due proof thereof within a period of one year from the date of flic commencement of the disability. There was sufficient evidence of permanent disability within the contemplation of the terms of the policy of insurance, and the vital question is whether due proof was furnished within one year. The testimony tended to show that the disability commenced about March, 1931. In January, 1932, the plaintiff undertook, as ho contends, to furnish proof thereof. Such proof consists of two elements: (a) the written statement of the attending physician, and (b) verbal statements to Mr. Cooke, paymaster of the Enka Corporation which employed the plaintiff and procured the group insurance. The written statement of the physician expressly declares that the plaintiff was not totally and permanently disabled and that the total disability was only temporary. Hence, the written proof furnished put the plaintiff out of court. However, the policy does not require that written prsof should be furnished, and the plaintiff undertook to show that verbal proof of disability was given within the one-year period. Manifestly such verbal proof should have been given to a proper agent of defendant. The testimony is to the effect that the oral declarations of disability were given to the paymaster of the Enka Corporation, who-was “not employed in any way by the insurance company.” There is evidence tending to show that Mr. Cooke looked after certain disability claims of employees of the corporation, but it does not appear whether such activities were performed in behalf of the corporation or of the defendant insurance company.

The burden of proof was upon the plaintiff, and as we interpret the record, there was no evidence that due proof of total disability has ever been furnished by the plaintiff to the defendant insurance company. Therefore, the ruling of the trial judge was correct.

Affirmed.