In 1929, defendant, Mutual Life Insurance Company of New York, issued to plaintiff, James W. Maynard, a policy of ordinary life insurance with disability benefits, in consideration of an annual premium of $778.50 of *Page 276 which $75.73 was the premium charged for disability benefits.
Due to losses sustained by the company arising from disability benefits paid under the class or type of policy here involved, beginning in 1937 it paid a smaller dividend on disability policies than it paid on nondisability policies.
The plaintiff became disabled in 1935 and was paid the stipulated benefits. He is seeking by his action herein to recover of the company the sum of $75.73 alleged to be due him because of the company's action in refusing to pay him the same rate in dividends as was paid on the same type of policy not providing for disability benefits.
Plaintiff predicates his right to recover upon the following provision found in section 2 of the policy:
"Neither the dividends nor the amount payable in any settlement hereof shall be decreased because of Disability Benefits granted."
It is insisted that once the plaintiff had established the condition precedent to his disability benefits, the company became obligated to pay: (1) $250 per month, (2) waive the premiums, and (3) not to decrease his dividends.
Section 2 of the policy is captioned "Benefits in Event of Total and Permanent Disability before age 60." The language employed in section 2, above quoted, obligated the company not to decrease dividends nor the amount payable in any settlement because of disability benefits granted the insured, Maynard. It does not mean that dividends shall not be decreased as a result of loss to the company arising out of the disability feature of policies of the type here involved. Defendant is a mutual company and it would be inequitable to allocate dividends to disability *Page 277 policies when disability insurance showed a loss. The dividends declared by the company were entirely equitable. The judgment of the trial court should be affirmed.
All the other members of the Court concur in this opinion. *Page 278