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JOHNSON v. NEW YORK LIFE INS. CO.

October 8, 1953

JOHNSON
v.
NEW YORK LIFE INS. CO.



The opinion of the court was delivered by: Hoffman, District Judge.

This is the defendant's motion for summary judgment in a complaint at law. The defendant filed an answer and affidavits in support of its motion.

The following facts are undisputed:

1. Under date of December 30, 1930, the defendant issued its policy on the life of Max Johnson, since deceased, in the amount of $10,000, rating up his age to 45 years. Policy included disability benefits described as follows:

a. On the face of the policy (page 1) the following clause occurred:

"And upon receipt of due proof that the Insured is totally and presumably permanently disabled before rated-up age 60,

The Company Agrees To Pay To The Insured

One Hundred Dollars each month and to waive payment of premiums, as provided under `Total and Permanent Disability'."

b. Under the heading, "Total and Permanent Disability" on an inside page, the following clauses are included:

"Upon receipt by the company at its Home Office of due proof, as hereinafter provided, that the Insured has become totally disabled by bodily injury or disease so that he is and will be thereby wholly prevented from performing any work, following any occupation or engaging in any business for remuneration or profit, and that such disability has already continued uninterruptedly for a period of at least four months * * *, and provided that * * *

"(2) such total disability began before the anniversary of the Policy on which the Insured's rated-up age at nearest birthday is 60, and prior to the maturity of this Policy * * *

"the Company will grant the following benefits:

"(a) Waiver of Premium. — The Company will waive the payment of each premium falling due after the commencement of such total disability and during its continuance, provided, however, that no premium shall be waived which shall have fallen due more than one year prior to the date of receipt at the Home Office of the Company of written notice of claim, as hereinafter provided, * * *.

"(b) Income Payments. — The Company will pay to the Insured the monthly income stated on the first page hereof * * * for the fourth and each succeeding completed month of such total disability * * * provided, however, that no such monthly payment shall be made * * * for any period more than one year prior to the date of receipt at the Home Office of the Company of written notice of claim. * * *

"Written notice of claim hereunder must be received by the Company at its Home Office during the lifetime and during the continuance of ...


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