Conford, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Plaintiff James P. Bowler appeals from a judgment of dismissal in favor of defendant Fidelity & Casualty Company of New York on his claim for total and permanent disability benefits under a policy of insurance issued by defendant. Defendant cross-appeals from that portion of the judgment which denied its motion to dismiss the complaint "on the grounds of the statute of limitations" and ordered it to make payment to plaintiff for an additional week of total disability.
The policy in question was entitled "Maximum Benefit Accident Policy," and was dated January 24, 1949. It provided coverage for two types of disability, "total" and "total and permanent", as well as for other losses not here relevant. As to the former, the policy provided:
Article 2. If the Insured suffers total disability that within thirty days from the date of the accident continuously prevents the Insured from performing each and every duty pertaining to his occupation, the Company will pay for the period of the said disability, not exceeding two hundred consecutive weeks,
As to the latter it provided:
"Total and Permanent Disability
Article 3. If the insured suffers total disability that within thirty days from the date of the accident continuously prevents the insured from performing each and every duty pertaining to his occupation for the period of two hundred consecutive weeks, and if at the end of the said period the Insured is totally and permanently disabled, as the result of the bodily injury causing the said two hundred weeks' disability, and is thereby permanently incapable of engaging in any occupation or employment for wage or profit, the Company, in addition to the Weekly Indemnity paid under Article 2, will pay an amount equal to the
Weekly Indemnity for 600 Weeks." (Emphasis added)
In each case the weekly indemnity was $50.
The provision of the policy referable to proof of loss provided:
"7. Affirmative proof of loss must be furnished to the Company at its said office in case of claim for loss of time from disability within ninety days after the termination of the period for which the Company is liable, and in case of claim for any other loss, within ninety days after the date of such loss."
The policy also provided:
"14. No action at law or in equity shall be brought to recover on this policy prior to the expiration of forty days after proof of loss has been filed in accordance with the requirements of the policy, nor shall such action be brought at all unless brought within two years from the ...