Shipp v. Metropolitan Life Ins. Co.

*21 Holden, P. J., delivered the opinion of the court. Appellant brought this suit to recover two hundred forty dollars under a policy of insurance which provided *22 for compensation for “total and permanent disability.7’ A demurrer was sustained to the declaration, from which judgment this appeal is prosecuted. As we understood the record, the. case turns upon one point, and that is whether or not the declaration states a cause of action under the policy with reference to the provision for compensation for total and permanent disability. It appears that the insured was totally disabled for a period of eight months, when he recovered to the extent that the disability was not total, but was partial and permanent after that time. The decisive question is whether the provision of the policy means that, the disability 'must be both total and permanent before liability exists. To state it' in- different words, the insured was totally disabled for eight months, but only partially disabled after that time, but the partial disability was permanent. Does this condition come within the provision of liability for “total and permanent disability?” We think not. The judgment of the lower court, sustaining the demurrer, was correct. The provision means that, before the insured can.recover thereunder, his disability must be both total and permanent at the same time. This may be a hard contract of insurance, but we see no other construction to be given the provision of the policy. Judgment of lower court affirmed.