
    JAN ARABASZ vs. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK
    Bristol, ss. Southern District Third District Court oe Bristol
    Argued February 11,1942
    Opinion filed April 13, 1942.
    Present : Estes, A. P. J., Briggs & Rollins, JJ.
    
    
      L. W. Dawson, Lyne, Woodworth & Evarts, for the Plaintiff.
    
      J. W. Mahoney, for the Defendant.
   Estes, J.

In this action the plaintiff seeks to recover under a policy of insurance that provided for payments if the insured became permanently and totally disabled by any impairment of mind or body which continuously renders it impossible for him to follow a gainful occupation.

The Court made written findings as follows:

“This is an action of contract brought under two insurance policies issued by the defendant on the life of the plaintiff on March 26, 1929, to recover for permanent disability of the plaintiff as provided in the policies. The writ is dated September 17, 1940. The Declaration is in two counts. The answer is a general denial on each count.

In July, 1930, the plaintiff became totally disabled within the terms of the policies and in accordance therewith, the defendant paid the plaintiff, according to the policies, the sum of Seventy-Five Dollars a month until May 4, 1939, when payments were stopped, and no payments have since been made. During a part of the same period, the plaintiff received benefits from the Metropolitan Life Insurance ■Company. It was agreed by the defendant that at the time of the inception of disability and for the period involved in the present action, the policies were in force and the premiums paid, the policies, No. 4136030 and No. 4136031 were put in evidence.

The plaintiff resides in New Bedford and when he last worked, he ran a grocery store and sold groceries and provisions. He was born September 21, 1880, and at the trial testified that since August, 1939, he could not work and had been seeing doctors since his payments under the policy were stopped, and that he had sent in a claim to the defendant for further compensation after it stopped sending checks on May 4, 1939. The plaintiff at the trial claimed that he was weak, his legs hurt him, and that he also had aches in his arms and left chest, that he could not walk much and that when he walked a little bit, he had to lie down and have a rest. It further appeared that he took some medicine every day and was attending the T. B. clinic in New Bedford and that he had also been to the Massachusetts General Hospital for a few days in 1939 and that for the last two years he had been losing weight. There was further evidence that during the period while the payments were discontinued, the plaintiff visited his clubs once in a while, but only to pay his dues.

The defendant called several physicians, who examined the plaintiff. The history of the case is that:

‘In 1930, after forty years of healthy existence, the patient came down with all the classical symptoms of pulmonary tuberculosis; at first, slight, nonproductive cough; later, weight loss, chest pain in the anterior substernal areas, dyspnea, sputum and occasionally blood-flecked sputum. Diagnosis by the local doctor was chronic fibroid pulmonary tuberculosis and the patient was sent to a sanitarium.’

There was evidence that at an examination of the patient at the hospital in July, 1939, revealed no evidence of active disease. The pulse was running higher than normal. Respiration was normal. The urine was normal. The examination showed that he could then do and perform the functions of a storekeeper but was not able to do heavy work, as heavy work might tend to cause or bring back his old complaint. There was evidence that his state of mind at the time hindered him from bringing himself to a mood for work.

An examination made on January 14, 1941, disclosed no evidence of active pulmonary disease and he appeared to be able to do the work that a sixty-year-old man could comfortably do. There was evidence that nothing was found which would indicate that he is not physically able to do a reasonable amount of work.

The claim of the plaintiff was that the incapacity was as the result of the tuberculosis.

I find that the plaintiff was examined in July, 1940, and was found not to have active tuberculosis and that about a year previous, an examination was made of the plaintiff which revealed almost the same condition as was found a year later. I find that the plaintiff was fifty-nine years old when the payments heretofore stated were discontinued. I find that after the payments were discontinued, a claim was made that payments be continued, but no ‘due proof’ was made at the time. I find that no demand for ‘due proof’ was made on the plaintiff after payments were first begun, and I find that ‘due proof’ was given or waived by the defendant at or before the time when payments were begun.

I find that the plaintiff has not worked for a long time; that he had formerly conducted a grocery store, and that if he does any considerable walking, he becomes tired and has to sit or lie down. I find that at the present time he has no active tuberculosis and that neither did he have any in July, 1939. I find that the plaintiff can do only light work; that he could not and cannot sell or deliver newspapers, which would require considerable walking, that he could sell light merchandise over the counter in a grocery store. I find that the plaintiff will always have to be careful not to overwork or overexert himself at the risk of bringing on or precipitating tuberculosis. I find that while he can and was able to do some light work when payments were discontinued, he cannot and will not be able to perform remunerative work of a substantial kind or amount which will afford him a means of livelihood. I find that there has not been any material change in the health of the plaintiff or in his ability to work between three months prior to the time when the payments were stopped and the time of the trial.”

The Court found for the plaintiff. The report states that it contains all the evidence material to the questions reported.

The main issue in this case is whether or not the Court could justifiably find that the plaintiff “cannot and will not be able to perform remunerative work of a substantial kind or amount which will afford him a means of livelihood”. The Court found that the plaintiff formerly conducted a grocery store, “and that he could sell light merchandise over the counter in a grocery store”. He also found that “the plaintiff will always have to be careful not to overwork or overexert himself at the risk of bringing oh or precipitating tuberculosis”.

Whether or not these findings are consistent is the principal point in the case. The requests of the defendant raise the question. The Court gave the third request as a good statement of law. He also gave the fifth. He refused the second, fourth and ninth as not based on facts found. The plaintiff’s first and second requests, given by the Court, were for findings of facts, and he found the facts upon which the plaintiff’s third request was based.

Having found that the plaintiff can do light work, and can sell light merchandise in a grocery store, although he will have to be careful not to overwork, was the Court justified in finding that he “cannot and will not be able to perform remunerative work of a substantial kind or amount which will afford him a means of livelihood.”

Admittedly, and the Court so found, there is no active tuberculosis the disease on which the plaintiff based his claim for total and permanent disability. There was evidence on which the Court could base the finding that, if the plaintiff “does any considerable walking, he becomes tired and has to sit or lie down”; and it may be assumed that the finding that he will need to be careful was justified. But from that, which appears to be the only evidence on which to base the findings, can it be concluded that the plaintiff “cannot and will not be able to perform remunerative work . . .”.

"When the case of Rezendes vs. Prudential Insurance Company, 285 Mass. 505 was decided, there were very few decisions in this Commonwealth to assist in determining the interpretation of insurance policies like the one here in question. Outside cases were in conflict. Since the Rezendes case, a line of decisions have been handed down by our Supreme Judicial Court which greatly clarify the law.

In the Revendes case, the 'Court held that one suffering from an ailment of such a nature that any exertion might tend to aggravate it or cause death, was permanently and totally disabled. In the case of Adamatis vs. Metropolitan Life Insurance Company, 295 Mass. 215, although the plaintiff had suffered the loss of one eye, the practical loss of the other and of both arms, but could still do some work around a farm, it was a question of fact. But the dissenting opinion went even farther.

We are of the opinion that this case is controlled by Azevedo vs. Mutual Life Insurance Company, 308 Mass. 216, and the cases cited on page 220. See Kaneb vs. Equitable Life Assurance Society, 304 Mass. 309; See also Bovhanesian vs. New York Life Insurance Company, Mass. Adv. Sh. (1942) 123.

It seems to us that it is common knowledge and experience that one in the condition that this plaintiff was found to be by the trial court, and considering his former occupation, is not rendered “wholly and continuously incapable of performing remunerative work of a substantial and not merely trifling character”, nor is he prevented from pursuing to a substantial degree any gainful occupation as a means of livelihood. Neither in the findings of the Court nor the narrative evidence do we find testimony that seems to us to justify the conclusions reached by the trial court.

We think the denial of the defendant’s second, fourth and ninth requests, and the allowance of the plaintiff’s first and second requests were error.

Having reached this result, we think there is nothing to be gained by a discussion of the other points argued by the defendant. No others are argued by the plaintiff.

The finding is reversed and finding for the defendant ordered.  