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Nickolopulos v. Equitable Life Assurance Society of United States

Decided: September 27, 1934.

THOMAS K. NICKOLOPULOS, PLAINTIFF-RESPONDENT,
v.
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, A CORPORATION, DEFENDANT-APPELLANT



On appeal from the Supreme Court (Essex county).

For the appellant, Collins & Corbin (Edward A. Markley and Howard F. McIntyre, of counsel).

For the respondent, Lum, Tamblyn & Fairlie (James Raymond Berry, of counsel).

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This appeal brings up a judgment of the Supreme Court entered upon the verdict of a jury at the Essex Circuit in favor of the plaintiff below, in a suit to recover on a policy of insurance, dated November 27th, 1927, for monthly disability benefits, the complaint seeking benefits beginning January, 1932, up to and including July of the same year.

Broadly stated, the grounds of appeal requiring consideration are these: (1) that the trial court erroneously refused to grant motions for nonsuit and for the direction of a verdict in favor of the defendant; (2) that the trial court erroneously

received evidence; (3) that there were errors in the charge.

We think that the motions for a nonsuit and for the direction of a verdict were properly denied.

The application for the policy, which was made a part of the contract, set forth that the occupation of the insured was that of "confectionery owner" and "real estate owner." The policy provided that "if the insured becomes wholly and permanently disabled before age sixty the society will waive subsequent premiums and pay to the insured a disability annuity of two hundred and fifty dollars a month," subject to conditions contained in the policy. The policy contained this provision and condition:

"Disability shall be deemed to be total when it is of such an extent that the insured is prevented thereby from engaging in any occupation or performing any work for compensation of financial value, and such total disability shall be presumed to be permanent when it is present and has existed continuously for not less than three months; and, further, the entire and irrecoverable loss of sight of both eyes, or the severance of both hands at or above the wrists, or of both feet at or above the ankles, or of one entire hand and one entire foot, will of themselves be considered as total and permanent disability within the meaning of this provision."

The evidence at the trial when such motions were made tended to show the following matters of fact, among others: The insured at the time of the trial was fifty-five years old. He was born in Greece and had worked there a few years selling dates. Later he came to this country and learned the candy business and prospered as a manufacturer and retailer of candies. He learned to read a little English, but he could not write anything except his name. He had never been in any business except the confectionery business, coupled with the ownership of a store building and a small apartment house. He knew no other business or occupation. In March, 1929, he ...


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