293 N.W. 248 | Minn. | 1940
The complaint in this appeal is the second amended complaint. The first amended complaint, to which a demurrer was overruled, is also in the printed record, presumably to give this court the benefit of the exhaustive memorandum *211 attached to the first order and referred to in the memorandum annexed to the order appealed from. Hereinafter the second amended complaint will be referred to simply as the complaint. Therein it is alleged that plaintiffs are the qualified representatives of the estate of Peter L. Berke, deceased; that the deceased held a contract of insurance with defendant under which there was payable to him $500 per month during total and permanent disability, which contract is made part of the complaint as exhibit A; that while said insurance contract was in force and premiums paid, said insured, on or about September 14, 1937, became wholly disabled by disease so that he was prevented thereby from engaging in any occupation whatsoever for remuneration or profit, which disability continued until his death February 23, 1938, some years before insured attained the age of 60 years; that on December 14, 1937, due proof was received by defendant of the insured's total and permanent disability for a period in excess of three months; that on January 5, 1938, $500 was paid the insured by defendant and a like sum on February 1; that at the time of making proof of total disability the insured did not know of his true condition, but in the early part of January, 1938, discovered that cancer caused the total disability with which he had been afflicted ever since September 15, 1937; that certain correspondence with defendant is attached to and made a part of the complaint, which discloses that defendant concedes the insured's disability was total and permanent from September 15, 1937, until his death. The complaint asks for judgment for $1,500.
The question presented is whether a recovery may be had for total and permanent disability of the insured prior to the date defendant received proof thereof. Defendant has admittedly made the monthly benefit payments which fell due after the receipt of such proof. We quote the pertinent provisions of the policy exhibit A:
"And the Company Agrees to Pay to the Insured
"Disability Benefits: One per cent of the face of this *212 Policy ($10 per $1,000) each month during the lifetime of the Insured and also to waive the payment of premiums, if the Insured becomes wholly and permanently disabled before age 60, subject to all the terms and conditions contained in Section 1 hereof. * * *
"Disability shall be deemed to be total whenever the Insured becomes wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit, and under this contract disability shall be presumed to be permanent after the Insured has been continuously so disabled for not less than three months and during all of that period prevented from engaging in any occupation for remuneration or profit. * * *
"2. Income Payments. — The Company will pay the Insured, * * * a monthly income of one per cent of the face of the Policy during the lifetime of the Insured and the continuance of such disability. The first income payment shall become due on the first day of the calendar month following receipt of proof of total and permanent disability or proof of continuous total disability for three consecutive months, as above, and succeeding payments shall become due on the first day of each calendar month thereafter. * * *
"3. Waiver of Premiums. — The Company will waive payment of any premium falling due after approval of such proof of disability and during such disability. Any premium due prior to such approval is payable in accordance with the terms of the Policy, but if due after receipt of said proof will, if paid, be refunded upon approval of such proof." *213
The learned trial court deemed this case controlled by Kassmir v. Prudential Ins. Co.
"In the instant case the risk for which recovery is had was covered. The only thing waived was notice or proof of the disability. Such notice or proof is not a condition precedent to liability. It is rather and only prerequisite to the right to sue. Hence it is the subject of waiver or estoppel."
Of course in a suit by the beneficiary in a life insurance policy, the death of the insured is a condition precedent to any liability of insurer, and proof of death or loss a condition to be complied with subsequent to death in order to maintain suit. The facts in the Wold case,
It appears to us that the language in the policy considered in the Andrews case,
"Here the obligation of the company does not rest upon the existence of the disability; but it is the receipt by the company of proof of the disability which is definitely made a condition precedent to an assumption by it of payment of the premiums becoming due after the receipt of such proof."
In the case at bar, in the first part quoted of the policy the company agrees to pay the insured "Disability Benefits: One per cent of the face of this Policy ($10 per $1,000) each month during the lifetime of the Insured and also to waive the payment of premiums, if the Insured becomes wholly and permanently disabled before age 60, subject to all the terms and conditions contained in Section I hereof," must be read in connection with section 1 to which it expressly is made subject. Paragraph 2 of that section stipulates that the "Company will pay the Insured, * * * a monthly income of one per cent of the face of the Policy during the lifetime of the Insured and the continuance of such disability. The first income payment shall become due *215
on the first day of the calendar month following receipt of proof of total and permanent disability or proof of continuous total disability for three consecutive months, as above, and succeeding payments shall become due on the first day of each calendar month thereafter." And paragraph 3 in respect to waiver of premiums provides: "The Company will waive payment of any premium falling due after approval of such proof of disability and during such disability. Any premium due prior to such approval is payable in accordance with the terms of the Policy, but if due after receipt of said proof will, if paid, be refunded upon approval of such proof." It is clear that the monthly disability benefits in this policy is the sum of $500, neither more nor less, and that the first income payment becomes due on the first day of the calendar month following the receipt of proof of total and permanent disability. That is, receipt of proof by defendant of the insured's total and permanent disability makes effective the obligation to make the first payment. There is no provision in any other part of the policy that can be construed as suggesting any other meaning than upon receipt by defendant of proof of the insured's total and permanent disability, before attaining 60 years, and premiums paid, $500 becomes due and payable on the first of the following calendar month. In addition to the authorities cited in the Andrews case,
The order is reversed. *216