Reingold

Appellant Harry Reingold, as guardian of appellant Rose Reingold, an insane person (hereinafter called the insured), and the insured, by her said guardian, brought this suit against appellees New York Life Insurance Company (hereinafter called the Company) and Ben Reingold. The complaint prayed for a decree adjudging and declaring that a certain insurance policy issued by the Company to the insured on, or as of, May 12, 1922, had not lapsed, as claimed by the Company, but was in full force and effect; that the insured was entitled to the disability benefits provided for in the policy, from and after May 1, 1931, on which date, it was alleged, she became totally disabled; that an assignment of the policy by the insured to appellee Ben Reingold, dated June 1, 1922, was void and of no effect; and that Ben Reingold had no right, title, or interest in or to the policy.

The suit was commenced in a state court of Oregon and, on the Company’s petition, was removed to the District Court of the United States; it appearing from the petition that appellants are citizens of Oregon, that the Company is a citizen of New York, that there is a separable controversy between appellants and the…

(dissenting).

Insured, at the time of her default in payment of premiums on May 23, 1931, and prior thereto, was totally and permanently disabled by reason of insanity. From that time she was, and is now, wholly incapable of making proof of her disability. Proof of disability was not made until after default in payment of premiums.

The policy lapsed, and recovery cannot be had, unless (1) the liability of the appellee is fixed by the occurrence of the disability and not by the proof; or (2) insanity excuses performance of the condition requiring proof of disability.

1. Whether liability for disability benefits and waiver -of premiums is fixed by the occurrence of the disability, or is fixed by the receipt of proof of disability by the company, is dependent upon the exact language of the policy. The cases, cited by the majority as authority for the holding that the provisions before us make liability arise only upon receipt of proof, all consider provisions which differ from those before us, and are therefore not in point. I believe, however, that no liability arises under the provisions before us, until the insurer receives due proof of the insured’s total and permanent…