
    Common Pleas Court of Montgomery County.
    Martin v. Equitable Assurance Company.
    
    Decided March 12, 1931.
    
      Allaman, Funkhouser, Murr & Shellenberger, for plaintiff.
    
      Arnold, Wright, Purpus & Harlor, for defendants.
    
      
       Affirmed by Court of Appeals.
    
   Snediker, J.

These cases have been submitted to the court on an agreed statement of facts, with which are to be considered two policies of insurance issued by the defendant company to Charles W. Martin. The one sued upon in case No. 67238 makes Lois Marjorie Martin the beneficiary; the one sued upon in 67239 makes Ida Mae Martin the beneficiary. Both policies in all other respects are alike in their terms, and in each case plaintiff seeks to recover the amount of insurance on account of the death of the insured; in the one case $4,000, and in the other $3,000.

These policies were issued for five-year terms (convertible), by the defendant company on March 13, 1928, which is designated the register date. By their provisions the Equitable Life Assurance Society insures the life of Charles W. Martin and agrees to pay, at its home office in the city of New York to the beneficiary named, the amounts of four thousand or three thousand dollars, as specified in the different policies, in' the event of the death of the insured prior to the 13th day of March, 1933, and upon receipt of due proof of the death of the insured, “provided premiums have been duly paid and this policy is then in force and is then surrendered, properly' released.” There was also this provision in the policies. - .

“And, further, if the insured, before age sixty and while this policy is in force, becomes totally and presumably permanently disabled, as defined in the total and permanent disability provision on the third page hereof, Society will, subject to the conditions of such provision, waive subsequent premiums and pay to the insured a disability income of §40 a month.”

And also this:

“This term insurance is granted in consideration of the payment in advance of $59.60 and of the payment annually thereafter of a like sum upon each 13th day of March until five full years’ premium have been paid or until the prior death of the insured. These payments include an annual premium of $7.76 for the total and permanent disability provision hereof.”

Among the clauses relating to the payment of premium is found the following:

“GRACE. A grace of thirty-one days will be granted for the payment of every premium after the first, during which period the insurance hereunder shall continue in force. No interest will be charged upon premiums paid during the days of grace. If death occur within the days of grace the premium then due and unpaid shall be deducted from the amount payable hereunder.
“LAPSE AND REINSTATEMENT. Failure to pay any premium on or before the day on which it falls due, shall constitute a default hereunder. Upon default, this policy shall lapse and the insurance herein cease, except its stated in the provision hereof entitled ‘Grace,’ but it may be re-instated at any time during the term period upon the production of evidence of insurability, satisfactory to the Society, and the payment of all overdue premiums with interest at five per cent, per annum.”

Covering “benefits in the event of total and permanent disability” in separate paragraphs, the policies contain the following language:

“DEFINITION. For the purpose of this policy:
(a) Disability is total when it prevents the insured from engaging in any occupation or performing any work for compensation of financial value.
(b) Total disability is presumably permanent only under the circumstances and from the date (herein called the effective date) as follows:
1. When due proof is received by the Society that it will presumably exist continuously during the remainder of insured’s life — then from the date upon which such proof is received by the Society.
* * * * * *
“BENEFITS. Upon receipt of due proof before the expiration of one year after default in the payment of premium, or, if there be no such default not later than one year from the expiration of the term period, .that the insured, while this policy was in force, became totally and presumably permanently disabled, as above defined, due to bodily injury or disease, before the anniversary of the register date of this policy upon which the insured’s age at nearest birthday is sixty years, the Society will,
(a) Waive payment of all premiums falling due upon this policy after the effective date of such disability and during its continuance. * * *
(Note — Any premium so waived and any disability income so paid shall not be deducted from any amount .payable as a death claim under this policy.)”

The insured paid the first annual premium of $59.60. He never paid any other premium. On March 18, 1929, he suffered a nervous breakdown, resulting in his being unable to engage in any occupation or to perform any work for compensation of financial value. He continued in this condition up to the time of his death on April 29, 1929. On June 12, 1929, notice of his disability was sent by the beneficiaries to the company. On May 4, 1929, notice of the death of Charles R. Martin was received by the defendant, together with a request for forms for proof of claim. On May 13, 1929, the defendant advised plaintiffs that the policies had lapsed prior to the death of the insured. On December 2, 1929, the plaintiffs, through their attorneys, requested the defendant,to furnish forms for proof of permanent and total disability under said policies. On December 5, 1929, the defendant declined to do so on the ground that the policies had lapsed prior to the death of the insured.

Keeping in mind that the judgments here sought are for the face amounts of these policies and not for the recovery of benefits arising out of total and permanent disability, are these plaintiffs so entitled to recover under the- provisions and circumstances which we have recited ?

In ascertaining and deciding the issues here presented we adopt the view of Judge Kinkade in his decision in National Life & Accident Insurance Co. v. Ray, 117 Ohio St., p. 13-22:

“Insurance policies, like other written contracts, mean what they say, and all they say. They are written for the protection of both parties thereto and all others interested in the policies. If such contracts are not to be enforced as written they might as well not be written at all.”

It is plain that these plaintiffs are not entitled to recover, since the insured died after the days of grace without paying his second annual premium; unless there is an obligation on the defendant to pay because of the total, permanent disability and because of its having been made effective for benefits by such due proof as waives the payment of all premiums falling due upon the policies after the effective date of such disability. The insured, as a matter of fact, suffered total permanent disability on March 18, 1929, before the expiration of the days of grace and while the policies were in full force; but so far as his contracts with this insurance company are concerned such total disability is only presumably permanent “when due proof is received by the Society that it will presumably exist continuously during the remainder of the insured’s life, and then from the date upon which such proof is received by the Society”; which, as appears from the agreed statement of facts, was on June 12, 19'29, which is- designated in the policies “the effective date”.

Martin had died on April 29, 1929, and the notice which was given on June 12, 1929, was two months after the policies had lapsed because of the failure to pay the premium due on March 13, 1929, or, with the days of grace, April 13, 1929. The only premiums which are waived are those “falling due upon this policy after the effective date of such disability and during its' continuance”. But the unpaid premium which fell due on March 13, 1929 could not be regarded as included in this provision because the effective date of the disability, under 'the notice given, was June 12, 1929. As to that unpaid premium no waiver appears anywhere in these policies. If this notice had been given prior to the expiration of the days of grace on the premium due March 13, 1929, then we might say that these policies were in force when the insured died, because there is a waiver of all premiums falling due upon the policies after the effective date. There is no other way, within the four corners of these policies, in which it can be said that “premiums have been duly paid” (or waived) so as to make payable to the beneficiaries the amounts here sued for.

The demand which was made on December 2, 1929, for forms for proof of permanent and total disability, and the declination on December 5, 1929 of the defendant to send such forms because it claimed the policies had lapsed, can have no weight in determining the liability of this defendant on these policies, for the reason that no effective date had been established after which plaintiffs would be entitled to a waiver of premiums, beneficial to them.

Our cases are not like that of Minnesota Mutual Life Insurance Company v. Marshall, found in the 29 Fed. Rep., at page 977, upon which counsel for plaintiffs sb much rely. In that case the court asked itself this question :

“Did the provisions of the policy require a waiver of the payment of the premium which became due October 14, 1926, merely because the insured became totally and permanently disabled during the grace period?
“The policy provided that if the insured, while the policy is in full force and effect, and without default in the payment of premiums, ‘shall become totally and permanently disabled as hereinafter provided and shall furnish satisfactory proof thereof, the company will waive the payment of all the premiums thereafter- becoming due.’ * * * Second: Upon the receipt of due proof of total and permanent disabilities as above defined, the company will waive the payment of all the premiums thereafter becoming due.’ ”

It will „be. seen, that if these are all of the provisions of the policy with respect to waiver of payment of premiums — and we must take it as being all or as not being affected by any other provisions, because the court would have quoted; further if there had been anything besides of importance — then the question of whether the date of the disability or the date of the due proof should fix the time of waiver'of the payment of premiums is open to the. construction of the court; and the decision there rendered, to the effect that “Provisions of life policy waiving payment" of premiums upon receipt of proof of total, permanent disability held to require waiver’ of payment where insured became permanently and totally disabled during grace period, notwithstanding .that proof of disability was not made before termination of grace period; ahd ‘permanently’ in policy includes complete disability extending over daté for payment of premium or until disability results in death, length of time not being measure by which permanent disability should be determined,” is a fair and reasonable construction of these provisions. But in the policies, now under consideration’ the necessity of any. construction with respect to time of waiver of premiums is obviated by the designation of the effective date, and in the language of our policies to the effect that:' “waive payment of all premiums falling due upon thi& policy -after the effective date of such disability and during its continuance.”

If these policies read that premiums were wáived from the date of the incurring of the permanent and total disability, or left the time of waiver open for construction, then although ’Martin died after the’ days of grace, It would not be difficult’ to find that these policies- were in forcé at his death. But"-since, as we have said, the effective date for purposes of waiver of premiums- was June 12, 1929, the facts here presented and the terms of these policies make án all together different case.

/Finding that the policies had lapsed on April ’29/ 1929, the date of the’ death of Charles W. Martin, judgments are rendered for the defendant.  