Fuchs v. Metropolitan Life Insurance ( 1938 )

Martin, P. J.

On September 24, 1923, the defendant issued to plaintiff a policy of life insurance in the sum of $2,000. The policy contains total and permanent disability provisions under which the company agreed to waive the payment of premium and also pay ten dollars a month for each $1,000 of insurance under the policy. The pertinent provision thereof entitled the insured to these benefits upon proof that he has “ become totally and permanently disabled * * * so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit,”

Claiming to be totally and permanently disabled, the plaintiff instituted this action to recover monthly payments and the return of a quarter-annual premium. The proof established that plaintiff has suffered the loss of hearing of at least sixty-eight and eight-tenths per cent of the right ear and sixty per cent of the left ear. His physician testified that plaintiff is totally deaf.

The bill of particulars sets forth that the disability arose from the fact that “ Plaintiff became deaf, which deafness affected both ears. Plaintiff could not hear, could not answer phone, could not take orders from customers.”

The plaintiff testified that prior to his affliction he was a salesman of store fixtures, such as cash registers, scales, ice machines and meat choppers. He also testified to efforts to obtain employment of any land, which he says were unsuccessful because of his condition. Cross-examination developed, however, that in 1935, shortly before the beginning of the period for which disability is claimed, plaintiff had been the owner and proprietor of a butcher shop. He testified he worked there " in a managing capacity,” as cashier. He also testified: “ I gave it up, I think it was the end of July, 1935, and I could no longer carry it.” Asked if he meant he could not]carry it financially, he replied: “ Financially and on account of my disability, but mostly financially.” The business was turned over to plaintiff’s brother-in-law, and there is testimony that plaintiff was subsequently observed actively engaged in and about the store during the entire day.

The contract here does not insure against occupational disability. The defendant is obligated to pay only in the event that the insured is prevented, because of the claimed disability, from engaging in any occupation and performing any work for compensation and profit. The question presented is: Has the plaintiff, who is totally deaf, become totally and permanently disabled so as to be prevented from engaging in any occupation and performing any work for compensation or profit under the terms of the policy? The particular disability involved in this case and its applicability to a disability policy claim has not heretofore been the subject of review by an appellate court in this State, so far as search of the authorities has been able to disclose.

Prior to 1922 no scheduled award would be maintainable for loss of hearing under the Workmen’s Compensation Law. By chapter 615 of the Laws of 1922, loss of hearing in both ears was recognized as a “ disability partial in character but permanent in quality ” for which compensation for 150 weeks might be awarded.

In McCutchen v. Pacific Mutual Life Ins. Co. (153 S. C. 401; 151 S. E. 67) Judge Ble ase made the following interesting comment on the subject of deafness: “ Total deafness may mean ‘ total disability/ as that term is known 1 o our law, as to some particular person, and it may mean practically nothing, when applied to some other person, in the matter of earning a livelihood or ability to engage in an occupation or employment. There are many, many things to be considered in correctly determining the effect of deafness upon a person’s ability and capacity. Each case must stand upon its own peculiar facts, for as the authorities hold, ‘ total disability ’ is a relative matter. It is impossible for this court to lay down any rule of law, which could operate as an absolute standard or guide in the many cases which may have to be determined. The safe rule — in fact, the only rule — when there is conflicting evidence, is to permit twelve men, constituting a jury, to hear the evidence, see the witnesses, and determine what is right.”

In the record before us, reference is made to a famous inventor, a distinguished physician, a prominent attorney, and a successful bank official, who found deafness insufficient to prevent their engaging in occupations which proved to be not only profitable to themselves but beneficial to the community at large. The plaintiff, at the time of the trial, was fifty-six years of age and, with the exception of deafness, in perfect physical and mental condition. Notwithstanding the tremendous handicap which deafness presents, there are still available to him opportunities from which compensation or profit may be derived.

We are not prepared to hold, as a matter of law, that total deafness is such disability as to entitle the insured to the benefits claimed. On this record, we hold that the plaintiff has failed to establish that he is prevented from engaging in any occupation or performing any work for compensation or profit.

The determination appealed from and the judgment of the Municipal Court should be reversed, and the complaint dismissed, with costs to the defendant in all courts.

Untermyer, Cohn and Callahan, JJ., concur.