On appeal from a judgment of the Bayonne District Court.
For the appellant, Perkins, Drewen & Nugent.
For the respondent, George G. Tennant.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
HEHER, J. The sole question raised by this appeal is the construction of the following disability benefit provision incorporated in a policy of life insurance issued by appellant to respondent:
"If due proof of total and permanent disability has not been previously furnished, and if the insured shall furnish due proof that he has been totally disabled * * * to such an extent that he was rendered wholly and continuously
unable to engage in any occupation or perform any work for any kind of compensation of financial value during a period of ninety consecutive days, * * * such disability shall be presumed to be permanent, and the company will upon receipt of such proof grant the disability benefits provided, subject to all other provisions of said clause, including those relating to proof of continuance of disability.
"Any disability benefits granted (hereunder) * * * will be granted from the commencement of total and permanent disability as defined, any other provisions in said clause to the contrary notwithstanding."
A subsequent clause imposes upon the insured the obligation, upon demand by the insurer, "at any time during such disability, and before the company's liability hereunder has ceased," to "furnish due proof that he (or she) actually continues in a state of disability, as defined above," in default of which the insured "shall be deemed to have recovered from such state of disability," and, in that event, "no further premiums shall be waived, and no further monthly payments shall be made."
It is stipulated that the insured "was totally disabled from performing any work for compensation of financial value for a period of more than ninety days in the year 1931;" and that "proof of alleged total disability has been furnished to the defendant by the plaintiff." It is conceded that this disability terminated in April, 1931, and the insistence of appellant is that, the disability having ended before the commencement of this suit (the action was commenced on October 26th, 1932), there is no cause of action under the policy. It is maintained that the disability must be existent when the suit is commenced, and that "there was no intention to presume a disability to be permanent when by the proof offered by the plaintiff the disability had already ceased to exist."
But such a construction does violence to the letter and spirit of the contract. The cardinal rule, in the interpretation of contracts, is to ascertain and give effect to the common intention of the parties, so far as it may be effectuated without ...