Bochner v. Equitable Life Assurance Society

WILLIS, J.,

pro tem.

Appellant, plaintiff below, brought suit against respondent to recover weekly indemnities under a health policy of insurance. Respondent denied liability and by counterclaim sought to recover certain payments of such indemnities theretofore made. After trial by the court, findings and conclusions were filed and thereon a judgment was entered that plaintiff take nothing and that defendant recover from plaintiff the sum of $428.56, with certain interest. From this judgment this appeal is prosecuted, and the chief contention of appellant is that the findings in respect to the question of disability and on the issues raised by the counterclaim are not supported by the evidence.

The indemnity clause provided that if disease shall wholly and continuously disable the insured and prevent him from performing any and every duty pertaining to

his

occupation, the society will pay for the period of such continuous disability the sum of $50 per week for not exceeding 52 weeks; and that after such payment for 52 weeks the society will continue the payment of weekly indemnities in the same amount thereafter so long as the insured shall be wholly and continuously disabled by such disease from engaging in

any

occupation or employment for wage or profit. It was alleged in the complaint and found by the court that from July 12, 1929, to August 22, 1931, respondent paid the weekly indemnities to appellant as for total disability in respect to his occupation. The court further found that from August 23, 1931, to date of trial appellant was not wholly and continuously disabled by disease from engaging in

any

occupation or employment for wage or profit, and that by reason of false representations made by appellant, respondent had paid indemnities amounting to the sum of $428.56 over the period from August 2'3, 1931, to October 21, 1931.

It is obvious from a reading of the briefs, and quite manifest after inspecting the transcript of the evidence, that

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