Plaintiff and defendant entered into a contract, the parts of which, pertinent to the issues at hand, are that defendant agreed to pay plaintiff a certain income monthly if plaintiff became "totally and permanently disabled as the result of bodily injury or disease" so as to be prevented thereby from engaging in any occupation or performing any work for compensation or profit; no such payment to be made unless the disability already has continued uninterruptedly for at least three months, the payments to be made during the continuance of the disability; the payments to begin as of the date of the inception of the disability, and if the insured shall be able to perform any work or engage in any business whatsoever for compensation or profit the monthly income shall cease.
It is agreed by the parties that plaintiff became totally disabled for a period of nine months, at which time the disability ceased and he then re-entered into gainful employment. Before the disability ceased, plaintiff filed claim for total and permanent disability payments under the contract. The claim was rejected by the insurance company and suit was filed after the so-called permanent disability ceased. Plaintiff prays *Page 90 for compensation under the policy contract for the nine months disability. The petition predicated the right to recover on the ground of "total and permanent" disability for nine months. Plaintiff recovered judgment in the trial court. Upon review, the majority of this Court of Appeals affirmed the judgment.
I will briefly state my reasons for dissenting from the majority decision.
It is an anomaly to state that a disability of nine months is permanent; it is more than an anomaly, it is a contradiction. That which has existed only nine months has existed for a temporary time, and not permanently. The words, "temporary" and "permanent" are plain words. One is the antonym of the other. There is no ambiguity in their use. As applied to this case a disability is permanent that continues during the life of the insured. Within the exercise of good common reason I do not believe that this court should so contort the real meaning of "permanent" as to give to it the meaning of its antonym, "temporary."
Plaintiff's petition shows that the disability was only temporary. The evidence shows that the disability was only temporary. Under the policy, therefore, no recovery should be had because the basis of recovery is permanent disability.
Absolute proof of permanent disability can seldom be made during the life of the subject. While there is life, there is generally a possibility of recovery. The law does not require of the plaintiff absolute proof of the allegations of permanent disability before he can recover. The law deals in probabilities only. It is sufficient if the proof shows a probability that the disability will be permanent. The company may accept the proof of the probability of permanency of the disability and pay. If the company refuses to pay, suit may be brought and proof made by the plaintiff of the probability of permanent disability. In neither case is the proof of permanent disability absolute. But if the *Page 91 so-called permanent disability ceases, under the policy the disability payments cease. It would follow that the disability under which the payments have been made is merely a presumptively permanent disability. When the disability ceases before death it is certain that there never existed a permanent disability. In which event, if payments have not started, the insurance company should not be required to begin payments, since the basis of plaintiff's claim under the policy must be total and permanent disability.
Plaintiff seems to argue that the word "permanent" is qualified, and changed in its meaning, because the insurance contract provides that no payment shall be made unless the disability has already continued for three months. It is provided that the company will pay only on the condition "that such disability has already continued uninterruptedly for a period of at least three months." "Such disability" has reference to the disability theretofore mentioned which is designated as a total and permanent disability.
By the wording of this policy, it is clearly contemplated that payments under the policy may be made to the insured during his life, but the right thereto depends upon total and permanent disability. If, before the payments begin, the disability has ceased, then it is apparent that there is no permanent disability and payments need not be made. If the payments have begun, and the disability then ceases, the payments immediately cease, and it is then certain that the plaintiff never was entitled to said payments, because the disability was not permanent.
Plaintiff contends that he is entitled to the first three months disability payments, in any event. This claim is untenable under the policy. The three months provision is placed in the policy merely to fix a date before which no claim may be made for permanent disability benefits. It does not create a right in the insured for such benefits for such three months. I will *Page 92 repeat again, the right to any benefits comes under the words "total and permanent disability."
Plaintiff also contends that the agreement to make disability payments, "during the continuance of such disability" modifies the meaning of "permanent" to something less than permanent, hence, temporary. This interpretation does not follow reason. The disability that is to be paid for, is permanent disability, and nothing less. If, however, a presumption of permanent disability is proved, and disability payments are made, as soon as this presumption is overcome and it is made to appear that the disability is not permanent, the payments cease. This is a reasonable procedure provided in the contract for the benefit of the insured, whereby the insurance company volunteers to pay on the chance that the disability is permanent until shown otherwise.
The thought is well expressed by the Supreme Court of the state of Ohio in the case of Rose v. New York Life Ins. Co., supra, as follows:
"If the cessation of disability be shown before the payments begin, plainly no payments need be made."
It has also been suggested on behalf of plaintiff, that since the policy provided that the company, upon due proof of total and permanent disability agrees to make the stipulated payments during the continuance of the disability, it was necessarily intended by the parties that payments were to be made for a presumptively permanent disability even though at the time it was clearly shown that the total disability theretofore existing had ceased to exist and was not permanent. With this contention the writer does not agree. The fundamental right of the plaintiff to recover at all for disability payments is, by the terms of the policy, a total and permanent disability.
A further quotation from the case of Rose v. New York Life Ins.Co., supra, sheds some light upon the controversy before us: *Page 93
"Considering the contract as a whole, however, there is no ambiguity unless an assumption is first made that the agreement is one to pay for temporary disability. But we may not read a meaning into the clear language of the contract and then find ambiguity in the words which deny that meaning.
"Indeed, plaintiff's case rests wholly upon the theory that the policy provides payments for temporary disability, since a disability ended before proof of it is made must of necessity be temporary."
This quotation of the Supreme Court applies directly to the case at hand. When plaintiff filed his proof of claim for disability, the insurance company had the right to reject the claim if they believed the disability not to be permanent. They had a right to have this question submitted to the court. It appears that before the court was called upon to pass upon the question thus presented, the action of nature intervened and brought about a cure of the so-called permanent disability which would deny to plaintiff the right of recovery. It appears to the writer of this opinion that when the plaintiff stated in his cause of action that his contract with the insurance company provided for payment to him in case of total and permanent disability and then he stated further in his petition that his permanent disability was of nine months duration, that the petition fails to state a cause of action.
The language used in this contract is clear and without ambiguity. It is well settled law that the contract made by the parties is the contract to be enforced.
"The court should not make a new contract for the parties where they themselves have employed express and unambiguous terms."Fidelity Casualty Co. of N.Y. v. Hartzell Bros. Co., 109 Ohio St. 566, 143 N.E. 137.
"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 *Page 94 others interested in the policies. If such contracts are not to be enforced as written, they might as well not be written at all." National Life Accident Ins. Co. v. Ray, 117 Ohio St. 13,158 N.E. 179.
In summary, the contract here provided for total and permanent disability benefits only, and not for temporary disability benefits. The disability shown in this case is temporary and plaintiff should not recover.
For the foregoing reasons, it appears to me that the judgment of the Court of Common Pleas, in favor of the plaintiff, should be reversed.