On appeal from the Supreme Court.
For the plaintiff-respondent, John H. Pursel and Robert Carey, Jr.
For the defendant-appellant, Collins & Corbin (Edward A. Markley, and Louis W. Dawson, of the New York bar, of counsel).
The opinion of the court was delivered by
HAGUE, J. This is an appeal from a judgment for the plaintiff entered upon a jury verdict in the Supreme Court Circuit of Warren county. The plaintiff sued to recover disability benefits to which he claimed to be entitled under two life insurance policies issued by the defendant corporation. The contracts of insurance owned by the plaintiff contain
a disability clause and each of said clauses is identical. The plaintiff sought the amount of the monthly disability sums provided in each contract, i.e., $100 per month, for a six-month period, totaling the sum of $1,200. In a second count he claimed to be entitled to receive in addition the sum of $88.20 a premium which he paid under protest at a time when he was suffering a total and permanent disability, within the meaning of that term as expressed in the contract of insurance.
The policy issued by the defendant insurance company to the plaintiff bound it to pay certain sums in the event the insured, through accident or sickness, became totally, permanently disabled before reaching the age of sixty years. The plaintiff was a farmer and dairyman and in October, 1928, while he was endeavoring to wean a calf, he was thrown against a stall in the barn as a result of which he suffered injury in the spine.
The defendant company, under the terms of each policy, paid plaintiff the sum of $50 per month for the first five years, and $75 per month for the second five years, and thereafter $100 per month. These payments continued from 1928 up to and included February, 1939. Thereafter the insurance company refused further payment claiming that the insured was no longer totally or permanently disabled under the terms of the policy.
It is first argued that the trial court erred in denying defendant's motion for nonsuit and directed verdict because of the fact that under the testimony for the plaintiff it did not appear that he was totally and permanently disabled in that there was no impairment of mind or body which rendered it impossible for plaintiff to follow a gainful occupation. It unquestionably appears that it was for the jury to determine whether or not the plaintiff could follow his calling as a farmer or dairyman. The plaintiff -- it is true -- was able to do many things such as going to the bank, tending to incidental chores about the farm, paying the help, keeping accounts, riding in the automobile when milk was delivered to retail trade by his son, and acting as secretary to the local school board. He drove a car at times. But there is evidence
from which it unquestionably appears that since his accident plaintiff has led an entirely different manner of life and been unable to do the things required in his calling as farmer and dairyman, and if he could not, and the jury so found, then under the principles laid down in Gross v. Commercial Casualty Insurance Co., 90 N.J.L. 594; Doherty v. American Employers Insurance Co., 112 Id. 52, and Nickolopulos v. Equitable, 113 Id. 450, he can recover under the contract.
The second point, namely, that there should have been a nonsuit because of failure to submit proof that he was disabled for the period of time for which this suit is brought is without merit. The insurance company knew, and had notice for the years preceding, that the plaintiff was disabled. He submitted ...