296 N.Y. 273 | NY | 1947
The question presented involves the right of an insured to payments for total and permanent disability. In order to reach that question other problems must first be considered. The insured, who died after the action was tried, obtained from defendant in 1926 a policy of insurance upon his life in which were included provisions for payments in the event of disability and for waiver of payment of premium during continuance of such disability. The insured paid the annual premiums required including the one which became due on March 2, 1941. When the next annual premium became due, he failed to pay it and permitted the grace period to expire. On the last day of grace, April 2, 1942, his son mailed a check which was dated April 3, 1942. That was one day too late (Struhl v. Travelers Ins. Co.,
Whether or not the policy had lapsed or been declared forfeited by reason of the failure to pay the March, 1942, annual premium within the grace period was important in determining whether the insured was entitled to claim disability payments thereafter under the applicable policy provisions. Unless a *277
proper notice had been sent to the insured in compliance with section 92 of the Insurance Law (now §§ 151, 208), the policy of insurance would not lapse and could not be declared forfeited within one year from the failure to pay the premium. As the policy was written in 1926, section 92 of the Insurance Law, as it then read, was deemed to have been a part of the insurance contract as though written into it. (Adam v. Manhattan LifeIns. Co.,
In that state of the record we consider now the occurrences subsequent to April 2, 1942. An agent of the defendant orally advised the insured that the policy had lapsed, and on April 8, 1942, obtained the signature of the insured on a form designated "Application for Reinstatement of an Ordinary Policy." Thereafter the defendant deposited and received payment of the check dated April 3d. Upon examination by the doctor selected by the defendant, reinstatement was refused and still later the sum collected on the April 3d check was tendered back. All this is undisputed and we turn to a sentence in the application for reinstatement upon which defendant relies to establish that the policy had lapsed. That sentence is: "I hereby apply for the reinstatement of the above numbered policy, which was lapsed for non-payment of the premium due 3-2-42 and make the representations contained in my answers to the following questions".
Defendant contends that the insured by signing, was concluded as to the lapsing of the policy by expressly admitting it. Defendant phrases it thus: "Plaintiff, by Exhibit 4, agreed that the policy `was lapsed for non-payment of the premium due 3/2/42', and that the `policy shall not be in force' until the premium in arrears is paid and the application for reinstatement is *278
approved." Such is not the law. Putting aside the questions whether there was here a "voluntary giving up of a known right" and thus a waiver (Lord Constr. Co. v. Edison Portland CementCo.,
Struhl v. Travelers Ins. Co. (
Since, then, the policy had not in fact lapsed or been forfeited, the first two causes of action should not have been dismissed. They were to declare (1) that the policy remained in full force *279 and effect and (2) that defendant's attempt to lapse or forfeit the policy was wrongful and unlawful. We come then to the third cause of action which is to recover disability payments. We think Equity Term was correct in dismissing that third cause of action. No proof of total and permanent disability was given to the defendant prior to the entry of judgment at Equity Term on August 11, 1944, and we are of course not concerned here with any claim for disability payments thereafter up to the time of insured's death. Under the provisions of the policy "receipt of due proof of such disability" was a condition precedent to recovery. The insured introduced the testimony, over objection, of a doctor who had examined him on December 23, 1941, and found him to be suffering from pulmonary tuberculosis and trachea vascular disease with hypertension. That doctor testified that the insured was totally and permanently disabled then and at the time of trial. Since the motion to dismiss was granted at the close of plaintiff's case, we shall assume that the insured was totally and permanently disabled from December 23, 1941, until the entry of judgment herein. When the insured was examined on May 1, 1942, when he applied for reinstatement, the doctor reported to the defendant that the insured's "general appearance is not that of first-class health" and that insured was a "poor risk". The report did not show that insured was suffering from any disease at that time. While no proof of disability was given to defendant, the administrators of the insured argue that the examination of May 1, 1942, should have disclosed his total and permanent disability and that the defendant is bound by the failure of its doctor to discover it even though no claim of disability was then asserted. We do not think that that was the "due proof" of disability intended or required by the policy provisions. We are not now concerned with whether proof of disability was given subsequent to the judgment entered herein and prior to the death of insured.
The judgments should be modified by reversing so much thereof as dismissed the first and second causes of action and granting a new trial thereof, and as so modified affirmed, with costs to appellant to abide the event.
LOUGHRAN, Ch. J., LEWIS, DESMOND, THACHER, DYE and FULD, JJ., concur.
Judgment accordingly. *280