Ginell v. Prudential Insurance Co. of America , 205 A.D. 494 ( 1923 )

Hasbrouck, J.:

This is an appeal from a judgment of the Supreme Court of Saratoga county bringing up for review the interpretation of a policy of insurance against physical or mental disability.

The plaintiff, under the age of sixty and having paid the premiums required to place his policy in force, became a victim of tuberculosis and was thereby disabled, with a permanency intended to be covered by the policy. The insurer claims not.

The policy in suit provides that the insurer will waive payment of its premiums during permanent disability; that the insured shall furnish due proof that he continues in a state of disability, and if he fails to do so he will be deemed to have recovered from his state of disability, and that if he recovers from such state of disability no further premiums shall be waived and no further monthly payments be made.

In using such language the parties must have understood that the disability though permanent might not continue.

The inexorable inference to be drawn as to the meaning of “ permanent ” is that it is applicable to a condition of disability which while not transient or ephemeral still may pass away.

The sense in which the word “ permanent ° is used in the policy is that of its Latin derivation, per through maneo, to remain. The policy covers disease. One in which disability may remain through. Tuberculosis is just such a disease. It is difficult to say whether its arrest may be accomplished. It is a fixed disease, permanent in its nature and involving permanent or fixed incapacity in its victim to work for a prolonged period of time at best.

I recommend the affirmance of the judgment.

H. T. Kellogg, Acting P. J., and Kiley, J., concur; Van Kirk, J., dissents, with an opinion in which Hinman, J., concurs.