Hugh S. Millar, J. Campbell Brandon, Brandon, Millar, Rockenstein & MacFarlane, Butler, for appellant.
Harry K. McNamee, Marshall, Marshall & McNamee, Butler, for appellees.
Before Hirt, Acting P.j., and Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 425]
This is an appeal from the trial court's refusal to grant judgment n. o. v. after a verdict for the plaintiff in a suit to recover alleged payments due under the total and permanent disability clause of an insurance policy issued by defendant.
The jury returned a verdict for $1,634 being computed from October 21, 1948 until the date of the verdict.
A contract of insurance was executed between the plaintiff and the defendant July 24, 1922. It contained the following clause:
'If due proof shall be furnished to the company at its home office that the insured before attaining the age of sixty years while there is no default in payment of premium hereinafter and the policy is in full force and effect has become totally and permanently disabled by bodily injury or disease, so that he is and will be permanently, continuously and wholly prevented thereby from performing any work or from following any occupation whatsoever for remuneration or profit; then he is entitled to recover under the terms of this contract because of total disability.'
Satisfactory proof was furnished to the defendant of total disability in the year 1927, and thereafter payments were made at the rate of $30 a month until June of 1944, at which time payments were discontinued by the defendant company. In December of 1944 the plaintiff furnished to the company a statement of total disability, upon blank forms furnished by said company. No reply was received by the plaintiff or his guardian relative to further payments based upon such proof.
May 3, 1945, the defendant filed a Bill in Equity against the plaintiff's guardian, alleging that the payments
[ 176 Pa. Super. Page 426]
received by it in behalf of the plaintiff from June, 1942, to June, 1944, ...