On defendant's appeal from a judgment of the Supreme Court based on a jury verdict at the Hudson County Circuit Court, in favor of the plaintiff for total and permanent disability insurance benefits. Affirmed.
For the respondent, Carey & Lane.
For the appellant, Perkins, Drewen & Nugent.
The opinion of the court was delivered by
PERSKIE, J. On January 23d, 1930, appellant issued its policy No. 369614, in the sum of $11,000 insuring the life of the respondent. In consideration of a special premium paid to it, appellant also granted the respondent total and permanent disability benefits. Respondent paid the first and only premium thereon. The grace period of thirty-one days expired on August 23d, 1930. Respondent brought suit against appellant alleging that on August 15th, 1930, he became totally and permanently disabled. Appellant answered, and among other defenses, set up the defense that respondent failed to furnish due proof of the alleged disability to the appellant while no premium was in default. To this answer respondent replied that he was both mentally and physically totally disabled, and thus incompetent to attend to his affairs and to give notice or proof of disability.
The proofs disclose (Exhibit P-4) that respondent's brother wrote appellant on June 1st, 1932, advising it of the respondent's total disability as of August 15th, 1930.
Respondent's contention below, as here, is in substance that under the proofs of the instant case, it became a jury question as to whether he was legally excused from giving notice or proof of disability prior to June 1st, 1932, and that appellant was estopped from denying liability in the premises.
The pertinent provisions of the policy are as follows:
"If the insured while no premium is in default under the policy and disability agreement shall furnish due proof that, before reaching the age of sixty years, because of accident or disease he has become totally and permanently disabled as hereinafter defined, and that such disability, or the cause thereof, was sustained or contracted after the date hereof, the company agrees as follows:
"(1) To waive the payment of all premiums becoming due under the policy and disability agreement after the commencement of such total disability and during its continuance.
"(2) To pay to the insured (or the beneficiary of record if such disability is caused by insanity) a monthly income of one per cent. of the face amount of this policy, exclusive of any paid up additions. Such payments shall begin as of the date of the commencement of such disability and shall continue monthly thereafter ...