#### MELVIN THOMAS McLAWHORN v. AMERICAN CENTRAL LIFE INSURANCE COMPANY, INDIANAPOLIS, INDIANA.

(Filed 1 November, 1935.)

Insurance R. c: Estoppel O b — Plaintiff held estopped to maintain action on disability clause in life insurance policy.

Insurer began paying disability benefits to insured upon receipt of due proof of disability under tbe policy. Insured’s disability bad its inception several years prior to tbe time insurer began paying disabilty benefits, and insured instituted tbis action for back disability benefits, contending that be bad furnished due proof of disability at its inception. Tbe evidence tended to show that insured, for years after tbe inception of tbe disability, corresponded with insurer as to extension of time for payment of premiums, paid tbe premiums by borrowing on the policy and by other means, and during tbis time never demanded waiver of payment of premiums as provided for in tbe disability clause, and thereafter requested tbe blanks for proof of disability and furnished the proof upon which insurer began paying tbe disability benefits. *Held:*Conceding that there was sufficient evidence that defendant furnished due proof of disability at its inception, insured is estopped by his conduct from maintaining this action for disability benefits for tbe period between tbe inception of tbe disability and tbe time insurer began paying tbe benefits under tbe terms of the policy.

Appeal by plaintiff from *Barnhill, J.,*at May Term, 1935, of Pitt.

Affirmed.

This is an action, brought by plaintiff against defendant, to recover on Policy No. 143026, issued by defendant to plaintiff on 11 September, 1925, for death, $3,000, and for total and permanent disability benefit.

The language of the policy is, in part: “American Central Life Insurance Company, Indianapolis, agrees to pay three thousand dollars, the amount of insurance, for the consideration and under the conditions *710stated herein, to the beneficiary, Bessie S. McLawhorn, wife of the insured, Melvin Thomas McLawhorn.”

The policy also provides: “The amount of insurance is payable to the beneficiary *Immediately*upon receipt of due proof of death of the insured and of the interest of the claimant. . . . Disability of the insured within the meaning of this supplemental contract shall exist if the insured, as the result of accident or disease, shall have become totally, permanently, and incurably disabled to such an *extent*that he is thereby prevented and will be presumably permanently and continuously thereby prevented from performing any work for compensation or profit, or from following any gainful occupation. . . . Even though proof of disability may have been accepted, the company may demand of the insured from time to time, but not oftener than once a year, proof of the continuance of such disability; and if such proof is not furnished on the company’s demand, or if it shall appear that the insured is able to perform any work for compensation or profit, or to follow any gainful occupation, no further premiums will be waived and no further income payments will be made, but the premiums already waived and the income payments already made by the company shall not become a policy indebtedness.” The annual premium is $84.78, including death and disability, and have been paid. The policy provides for certain loans and automatic premium loans.

The *plaintiff*alleges in his *complaint*that on 15 July, 1929, in accordance with the policy, he furnished to defendant proof of total and permanent disability, and that “the defendant is indebted to plaintiff in the sum of $423.00, and interest for the return of premiums erroneously paid and collected, and in the further sum of $1,485, and interest thereon, for disability benefits due for the plaintiff’s disability under the provisions of said policy up to 25 February, 1934.”

The defendant denied that due proof was made by plaintiff to it as above alleged, and pleads estoppel. It says, in part: “That the policy sued on was issued 11 September, 1925, and the plaintiff paid or arranged to be paid the premiums thereon, and for several years secured loans from the defendant with which to meet said premiums. That in and by the terms, conditions, and provisions of the policy, no amount was to become due under the disability clause until the company received due proof of the disability of the insured, as therein defined, and not until February, 1934, did the defendant receive such proof. That for several years prior to 1934 the plaintiff paid or arranged to be paid the premiums, without filing any claim or due proof of disability, and his failure to file said notice or due proofs of disability and payment of premium was and should be construed as a waiver of any and all rights or claims now made in this proceeding, and, in law and truth estops the *711plaintiff from asserting sucb claim, and tbe defendant pleads tbe same in bar of any recovery.”

At tbe close of plaintiff’s evidence tbe court below, upon motion of defendant, rendered judgment as of nonsuit. C. S., 567. Tbe plaintiff excepted, assigned error, made other exceptions and assignments of error, and appealed to tbe Supreme Court. Tbe material assignments of error and other necessary facts will be set forth in tbe opinion.

*Lewis G. Cooper and Albion Dunn for plaintiff.*

*J. B. J ames for defendant.*

ClakksoN, J.

From tbe evidence in tbe record it appears that tbe plaintiff, from 15 July, 1929, was, under tbe terms of tbe policy, “prevented from performing any work for compensation or profit or from following any gainful occupation.”

Tbe following letter, which is in tbe record, was sent by plaintiff to defendant: “Greenville, N. 0., 9 February, 1934. Tbe American Central Life Insurance Company, Indianapolis, Ind. Dear Sir: Please send me three (3) blanks ‘In Disability Benefit’ on my Policy No. 143026. I am unable to work or do anything at all. Several doctors will certify that I am unable to work. Tours truly, Melvin Thomas McLawhorn.”

It is further in tbe record: “Counsel then shows tbe witness a check, dated 3 April, 1934, for $60.00, and asked tbe witness if be endorsed that check, to which be answered: ‘I reckon I did.’ Tbe check was in tbe form and words following: ‘American Central Life Insurance Company, No. 337835, Indianapolis, April 3, 1934. Pay to Melvin Thomas Mc-Lawhorn or order $60.00. Sixty and 00/100 Dollars. Monthly disability payments for 2-26-34 and 3-10-34 — Policy 143026. American Central Life Ins. Company, Edward M. To Indiana National Bank, Indianapolis, Ind.’ That was tbe first check that came to me. Witness was then asked tbe question: ‘You accepted that check and endorsed it and got tbe money on it?’ ‘A. Yes, sir.’ ”

This check was dated 3 April, 1934, and was for two monthly disability payments — $30.00 a month, as provided by the policy. This action was commenced on 30 July, 1934, some five years later, for back disability payments, from 15 July, 1929, to 26 February, 1934, the time when no question is made that proper notice under tbe policy was given by plaintiff to defendant.

It is contended by plaintiff that be furnished proofs to defendant company on 15 July, 1929. We think tbe evidence is uncertain and so vague that we cannot say it was of sufficient probative value to be submitted to tbe jury.

*712Between 15 July, 1929, and February, 1934, tbe plaintiff made no demand for disability payments or waiver of premium, as provided by tbe policy. On tbe other band, be was continuously corresponding witb tbe defendant, requesting extension of premiums, etc., and executed two notes, termed “Automatic Premium Loans,” whereby be secured sufficient funds to meet these premiums. If tbe plaintiff bad submitted due proof of bis disability, it was not necessary to write for blanks and submit another claim in 1934, and to accept tbe $60.00 check under tbe new claim. For some four and a half years be paid bis premiums by borrowing from tbe company, getting extensions and otherwise, and at no time claimed to tbe company that be was disabled.

We think tbe evidence as to notice that plaintiff claimed be gave defendant was not sufficient to be submitted to tbe jury, but conceding, but not deciding, that it was, tbe plaintiff is estopped by bis conduct to maintain this action. We see no error in excluding tbe evidence that plaintiff complains of — if admitted it would not be of such materiality as to change tbe view we take of tbe evidence on this record.

Tbe judgment of tbe court below is

Affirmed.