THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, a Corporation, Appellant,
A. EMERSON BOYD, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Elbert R. Thurman, Judge. Judgment affirmed.
Messrs. Armstrong, Kramer, Morrison & Roche, for Appellant.
Mr. H. M. Van Denburgh, for Appellee.
[51 Ariz. 309] ROSS, J.
This is an action for permanent disability benefits under the terms of a life
insurance policy. A jury sat in the case until the evidence was closed, and then by stipulation of the parties the jury was discharged and the case submitted to the court. The court found that defendant under its policy owed the plaintiff monthly payments of $10 for fifty-two months or from November 3, 1932 (the date plaintiff alleged in his complaint that he became totally and permanently disabled), until March 3, 1937, a month preceding the trial, and entered judgment for such sum and interest to March 3, 1937, amounting to $588.90. The defendant appeals.
The policy is dated November 13, 1929, and calls for the payment of annual premiums thereafter on that date. The premium due November 13, 1932, was not paid, and has never been paid. The promise of the defendant in its contract is:
"... if the Insured before age 60 becomes totally and presumably permanently disabled as defined in the Total and Permanent Disability provision on the third page hereof, the Society will, subject to the conditions of such provision, waive subsequent premiums and pay to the Insured a disability income of ten dollars a month."
The plaintiff made his proof of disability in January, 1933. Defendant rejected such proof and refused to pay him benefits.
As we understand defendant, it claims the policy lapsed because the premium for 1932 was not paid and also that the evidence does not support the finding of total and permanent disability as alleged.
[51 Ariz. 310] We think it is implicit in the terms of the contract that, if the insured becomes disabled at a time when he has paid all his dues, it is not necessary thereafter that he pay any dues. He, however, must conform with the terms of the policy in his proof of disability. The provisions of the policy that govern and control under the facts as they appear here are as follows:
"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 ...