Robbert v. Equitable Life Assur. Soc. of United States

(concurring in part and dissenting in part).

The provision of the policy relating to the waiver of premiums is free from ambiguity, and I agree that the only reasonable interpretation to be given it is that announced in the majority opinion. It clearly recites an agreement on the part of the company to waive payment of all premiums payable upon the policy falling due after receipt of proof of the disability.

But I do not agree that the disability-annuity provision is likewise unambiguous, the numerous so-called “goose cases” from other jurisdictions to the contrary notwithstanding. It stipulates that the company will “Pay to the Insured a Monthly Disability-Annuity as stated on the face hereof; the first payment to be payable upon receipt of due proof of such Disability and- *351 subsequent payments monthly thereafter during the continuance of such total and permanent Disability.”

This stipulation, by adding the word “monthly” to the phrase “the first payment”, can be interpreted as the majority has done. However, as written and without the addition, it logically can be construed also as obligating the company for disability benefits from the inception of the disability with the obligation dischargeable or payable only after receipt of due proof. Thus, preceding the semi-colon is a complete sentence expressing unqualifiedly an obligation to pay a monthly disability-annuity. Standing alone this could only mean payment for the entire disability. Then follows a recitation of the method by which the annuity is to be paid, it being that the first payment'' (not necessarily the first monthly payment) is .payable upon receipt of due proof. This first payment, especially since the' word “monthly” is not used in connection with it, may well be interpreted as covering all of the disability theretofore experienced, that is from its inception to the date of such first payment.

Being susceptible of two different interpretations, and hence ambiguous, the disability-annuity provision should be given that construction which is most favorable to the insured.

For these reasons I respectfully. concur in part and dissent in part.