This is an appeal on questions of law from a judgment rendered by the Court of Common Pleas of Hamilton county, pursuant to the verdict of a jury in an action in which the plaintiff as beneficiary of two identical policies of insurance upon the life of her deceased husband sought to recover the balances due thereon after the deduction of loans to the insured.
The contentions of the defendant insurance company present two principal problems for the consideration of this court, one involving the waiver of premiums, the other the matter of extended insurance.
It appears from the evidence that the policies involved *Page 212 carried "riders" containing the following clause:
"Upon receipt of due proof that the insured has become physically or mentally incapacitated so as to be wholly and permanently unable to engage in any occupation or profession or to perform any work whatsoever for compensation, gain or profit, and that such disability has occurred while the policy and this agreement are in full force and prior to the policy anniversary nearest his sixty-fifth birthday, and has existed for a period of ninety days, the company will pay to the insured a monthly income of fifty dollars and will also waive the payment of every premium thereafter due upon the policy and this agreement, subject to the conditions herein set forth."
The first quarterly premium claimed by the plaintiff to have been waived was due October 16, 1939; the grace period expired thirty days thereafter. That the insured was for some time prior to the date when such premium was due, permanently and totally disabled may be assumed as fully proved. That such condition continued until the date of his death on July 15, 1940, is also fully evidenced.
The record also clearly shows that no notice of such disability was received by the defendant until October 30, 1940, some three months after the death of the insured and almost a year after the due date of the first premium claimed to have been waived. No premiums were paid on or after such date.
The plaintiff claims that, by virtue of the clause quoted and the facts stated, the defendant is considered to have waived the premiums due, and that such policies were in full force and effect at the date of the death of the insured.
The defendant claims that, such premiums not having been paid, and no notice of disability having been *Page 213 received until long after such premiums were due and long after the death of the insured, the waiver provisions of the clause quoted were not invoked.
The evidence shows that the insured, while suffering from a disability which rendered him incapable of carrying on his business during the period in question, was at all times almost up to the date of his death fully capable of sending or giving notice to the defendant of the disability now claimed to have existed.
The controversy between the parties centers about the word "thereafter" appearing in the clause quoted. The plaintiff asserts that this word applies to the disability and that premiums due "thereafter" are waived. The defendant claims that the word refers to notice and that premiums are only waived after such notice has been received.
That he who writes a contract must extend to the other party or parties the most favorable, reasonable interpretation of the language employed where ambiguity appears in what is written is now accepted universally as a rule of construction of contracts. This is particularly true in the case of policies of insurance. In Stipcich v. Metropolitan Life Ins. Co., 277 U.S. 311,72 L. Ed., 895, 48 S. Ct., 512, the sixth paragraph of the syllabus is:
"Narrow and unreasonable interpretations of clauses in an insurance policy are not favored. When open, with equal reason, to two constructions, the one most favorable to the insured will be adopted."
Clauses almost identical with those here involved, or varying only slightly in terminology, have been considered by many courts. The conclusions thereon are anything but consistently uniform.
The plaintiff relies upon a typical example in a case decided by the United States Court of Appeals for the Eighth Circuit, inMinnesota Mutual Life Ins. Co. v. Marshall, 29 F.2d 977. The clause therein considered *Page 214 is noted on page 978 of the opinion as follows:
"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 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 premiums thereafter becoming due.'"
The facts involved in the Marshall case develop a situation in which the construction placed upon the clause in favor of the claimant appears to be especially compelling.
The insured there was incapacitated by an acute attack of appendicitis a few days before the expiration of the grace period mentioned in his policy. He lived alone upon a farm. Two days after the expiration of the grace period he came to the home of his father, some three miles distant, was taken to a hospital, and died about 2 weeks after an operation. Of course, the insured could have immediately notified the company of his disability and the premium due at the end of the grace period would have been waived. The court said in the opinion:
"On the question of when the time of waiver of the payment of premiums begins under policy provisions similar to these quoted, there are two lines of decisions; one holding that proof of disability fixes the time when the waiver begins; and the other holding that the time of waiver is the time of disability, and that a reasonable time thereafter is allowed to make proof of such disability, and that if death occurs before the proof of disability is made, although after the due date of the premium, the insurance company is liable, *Page 215 where the disability arises before the due date of the premium, and continues until death."
It will be observed that the instant situation does not fall within either of the alternatives suggested by the court.
Certainly, it cannot be maintained that almost a year is a reasonable time in which to give notice of disability. The evidence in the instant case shows that the insured was disabled within the meaning of such clauses long before the quarterly premium was due or the grace period had elapsed and was so disabled continuously up to the time of his death. The first words, "upon receipt of due proof," of the clause in the policies here under consideration, upon which the plaintiff in this case relies, are significant. The clause is in large type and is not drafted in any way to cause misapprehension as to its meaning. The word "thereafter," which plaintiff seeks to make a sine quanon, is nearer to the word "waive" than to the word "disability," to which plaintiff seeks to attach it. Only by a strained, unreasonable effort may it be claimed that the clause means that a notice of disability received some twelve months after the same is incurred, where the insured is capable of giving notice, may relate back to the time of such disability and be effective as a waiver of premiums from the first date of such disability, although the company was completely ignorant of its existence.
That cases of coma or amnesia may exist which would render such construction harsh may not be here urged against a situation which presents no claim to extraordinary or strained interpretation by this court.
The case of Wolf v. Prudential Ins. Co., 31 N.P. (N.S.), 154, is cited by plaintiff. The instant issue was not there involved, but the opinion is not adverse to the position here adopted. *Page 216
Nor is the case of Western Southern Life Ins. Co. v. Smith,41 Ohio App. 197, 180 N.E. 749, of any value to the plaintiff, as it also sustains the view here taken. Judge Mauck, after noting the Marshall case and its peculiar incidents, cites many authorities in which receipt of proof of disability is required as a precedent to waiver of premiums.
It is unnecessary to here again note those authorities.
Western Southern Life Ins. Co. v. Smith, supra, is cited by Justice Cardozo in Mutual Life Ins. Co. of New York v. Johnson,Admr., 293 U.S. 335, 338, 79 L. Ed., 398, 55 S. Ct., 154, together with many other decisions of courts upon such a clause. The Supreme Court of the United States in that case accepted the construction of the Virginia courts (in which state the case arose) not because it approved such construction, but solely because the court considered that the clause should be interpreted according to the mandate of the highest court of the state in which the case was considered. It is interesting to note the conclusion of the Virginia court. "The ruling there was," states the Supreme Court, "that notice was excused by physical and mental incapacity to give it." Whether an independent approach to the matter by the Supreme Court of the United States would have required the application of a less humane rule does not appear. Certainly, the ruling of the Virginia court is reasonable as well as humane.
The facts in the instant case do not require an application of any rule extending the clause beyond the terms used requiring notice before waiver. A conclusion upon such situation is reserved until other facts require a consideration of the clause again in the presence of such changed circumstances.
It is thus evident that in the instant case the policies lapsed on the 16th day of November, 1939. *Page 217
Was there extended insurance carrying the policies in force to the date of death of the insured?
This question involves purely a mathematical calculation, which a court as well as a jury could determine accurately. The defendant concedes all claims made by the plaintiff and still contends that there was not sufficient balance in the cash surrender value of the policies to extend the insurance, by retiring premiums due, to July 15, 1940, the date of the death of the insured. To claim that insurance could be extended by reference merely to the table of extended insurance set out in the policies, without having any regard to depletion by reason of loans and interest, due and payable, is absurd and is a position wholly untenable. By reference to the evidence, it appears that giving the plaintiff the benefit of every reasonable claim to credit balances after deducting loans and simple interest, there were not sufficient balances remaining to the credit of the insured to carry the policies in effect until his death.
For these reasons, the judgment of the Court of Common Pleas is reversed and judgment here rendered for the defendant.
Judgment reversed.
MATTHEWS, P.J., concurs.