Mutual Life Insurance Co. v. Olliff , 67 Ga. App. 845 ( 1942 )

1. A person engaged in farming operations may be found by a jury to be totally disabled, within the meaning of the total-disability clause in the policy, when as the result of such disability he can not plow and do other heavy farm duties, which he could do before he became disabled, although he can walk over his farm and superintend it and can drive an automobile.

2. The court did not err in charging the definition of total disability as announced in Cato v. AEtna Life Ins. Co., 164 Ga. 392 (3) (138 S.E. 787), on the ground that the court failed to go further and instruct the jury in the language of the policy as to what constituted total disability.

DECIDED JULY 16, 1942. REHEARING DENIED JULY 28, 1942. J. J. Olliff brought suit against the Mutual Life Insurance Company of New York on a policy of insurance. The policy provided that should the insured become totally disabled, within the meaning of the policy, during the time the policy was in effect, the company would pay the insured a monthly income during the continuance of the disability at the rate of $10 for each $1000 face amount of the policy, which was $1000. The company also agreed in the event of such disability to waive premiums due on the policy during the continuance thereof. The policy provided as follows: "Benefits in the event of total and permanent disability before the age of 60. . . If the insured, after payment of premiums for at least one full year, shall, before attaining the age of sixty years, and provided all past due premiums have been duly paid and this policy is in full force and effect, furnish due proof to the company at its home office either (a) that he has become totally and permanently disabled by bodily injury or disease, so that he is and will be permanently, continuously, and wholly prevented thereby from performing any work for compensation, gain, or profit, and from following any gainful occupation, . . the company, upon receipt and approval of such proof, will grant the following benefits." The policy also contained the following provisions: "Proof of continuance of disability required: recovery from disability. Although the proof of total and permanent disability may have been accepted by the company as satisfactory, the insured shall at any time thereafter, and from time to time, but not oftener than once a year, on demand, furnish to the company due proof of the continuance of such disability, and if the insured shall fail to furnish such proof, or if it shall appear to the company, except in the case of the `specified disabilities' . . that the insured is able to perform work of any kind or follow any occupation, whatever, for compensation, gain, or profit, no further premiums shall be waived, no further income shall be paid."

The plaintiff alleged that on August 14, 1924, the defendant issued to him the policy sued on in which it contracted, in consideration of the annual premium of $36.40, to pay to the plaintiff, in the event of his total and permanent disability, as above stated; that on July 10, 1938, at a time when the premiums had been paid for more than one year, and all premiums due had been fully paid, and when the plaintiff was fifty-two years of age, he became wholly and totally and permanently disabled by disease so that he was, and is permanently, and will be continuously and wholly, prevented from performing any work for compensation, gain, or profit, and from following any gainful occupation, "and since said time and is now so disabled, and within the terms of said policy is entitled to recover the sums hereinafter alleged;" that his disability first originated within his knowledge, from "undulant" fever which began several days before July 10, and that as a result thereof he was confined to his bed for several weeks, and that since that time, and as a result of the fever and of some other disease unknown to the plaintiff, the soles of his feet have remained tender, and his ankle joints, knees, and hips ache; that when he attempts to walk or stand on his feet his feet become swollen and painful, and in addition thereto he is unable to stoop over without difficulty, and he suffers pain in his chest, and has violent headaches; that his sole occupation and the only work in which he has ever engaged was farming which required manual labor such as plowing, planting, hoeing, and like duties incident to farming, and by reason of the above disability, since July 10, 1938, he has been unable to perform such duties or any of them; that in January, 1939, after corresponding with the defendant, he submitted to it proofs of his disability as required by the policy; that such proofs were accepted by the defendant, and the claim for disability was approved; that on February 18 the plaintiff was advised by the defendant that the disability payments would not be continued after February 1, 1939, and the disability payments were discontinued after February 1, 1939, although on that date the plaintiff was disabled and has been continuously since that time and is now disabled; that the defendant wrongfully discontinued the payments and has refused to continue them; that from time to time since that date the plaintiff, through himself and his attorneys. has corresponded with the defendant and put it on notice of the continuance of his disability, and that on July 1, 1940, and on August 30, 1940, the plaintiff, through his attorneys, advised the defendant of the continuance of the disability and requested to be advised if the defendant desired further proof thereof, and sent a statement of his physician certifying that he was totally and permanently disabled; that the only further proof demanded by the defendant has been that the plaintiff submit to an examination of a physician selected by the defendant, which the plaintiff has done; that in spite of all these facts the defendant has refused to pay the disability payments; that the plaintiff has fully complied with the terms of the policy, is under sixty years of age and is totally disabled; and that therefore the defendant is indebted to him in the sum of $10 per month beginning February 1, 1939, with interest at 7 per cent.; that while so disabled and, during the time the above matters were being taken up in correspondence with the defendant, and before the defendant had "continuously refused to pay same," and while the payment of the claim was pending, "and under urgent and immediate necessity of same to prevent claim by defendant that said policy had lapsed," the plaintiff paid the premiums due on the policy on August 1, 1939, and on August 1, 1940, the amount of $36.40 each "which said amounts were paid as stated while the disability claims were being disputed by defendant, and it was immediately necessary and urgent that plaintiff pay same or run risk of having defendant claim said policy in default;" that under the circumstances plaintiff is entitled to recover, in addition to the disability payments sued for, the premiums so paid by him.

The defendant denied liability, claiming that the insured was not totally disabled within the meaning of the policy. The case proceeded to trial. The jury found that the insured was totally disabled within the meaning of the policy and was entitled to recover the monthly payments sued for. The defendant's motion for new trial was overruled and it excepted. 1. There was evidence that the plaintiff, who was a farmer, could drive an automobile and walk over his fields, and inferentially superintend the farm work, but that he could not plow and do other similar heavy duties on the farm which he did before he became disabled. It has been held that a farmer may be totally disabled, although after his disability he is able to direct his business and do some of the farm work himself. Taylor v. Southern States Life Insurance Co., 106 S.C. 356 (91 S.E. 326, L.R.A. 1917C 210); Fogelsong v. Modern Brotherhood,121 Mo. App. 548 (97 S.W. 240), followed, on appeal,129 Mo. App. 655 (108 S.W. 1199); Beach v. Supreme Tent,177 N.Y. 100 (69 N.E. 281).

2. The court charged the jury as follows: "If you should find in this case that the plaintiff is incapacitated from performing any substantial part of his ordinary duties, a case of total disability is presented, although he is still able to perform some parts of his work. So the phrase `total disability' as used in the policy in issue means inability to do substantially all of the material acts necessary to the transaction of the insured's business or occupation in substantially his customary and usual manner." Error is assigned on this charge on the ground that the court did not confine the definition of "total disability" to the limitations stated in the policy.

The policy provides that a total disability insured against is where the insured "has become totally and permanently disabled by bodily injury or disease, so that he is and will be permanently, continuously, and wholly prevented thereby from performing any work for compensation, gain, or profit, and from following any gainful occupation." This excerpt from the charge is assigned as error in that the court did not further charge the jury as respects total disability in the above language of the policy, and that the failure to so charge was error and a denial to the defendant of the equal protection of the law under a specifically pointed out provision of the constitution of this State which provides that the protection of persons and property is the paramount duty of government and shall be impartial and complete, and that also such failure to charge was a denial to the defendant of the equal protection of the law under a specially pointed out provision of the constitution of the United States which provides as stated: "Nor shall any State deprive any person of life, liberty, or property without due process of law nor deny any person within its jurisdiction the equal protection of the law."

The Supreme Court, in Cato v. AEtna Life Insurance Co., supra, Prudential Insurance Co. v. South, 179 Ga. 653 (177 S.E. 499), and other cases has given a construction to disability clauses in policies substantially like the clause in the policy here referred to. In the Cato case the disability clause, while not in the exact language of that now under consideration, was substantially to the same effect. In that case the policy provided that total disability would exist where the insured was prevented "from pursuing any occupation for wages or profit." In the Cato case the Supreme Court, in construing the total-disability provision in the policy under consideration there, held: "When the insured is incapacitated from performing any substantial part of his ordinary duties, a case of total disability is presented, although he is still able to perform some parts of his work. Total disability is inability to do substantially all of the material acts necessary to the transaction of the insured's occupation, in substantially his customary and usual manner." Since the Supreme Court in theCato case has defined total disability as above indicated, it was not error for the court in giving this definition in charge to fail to go further and quote the provision of the policy containing the definition of total disability. In charging as it did the court denied the defendant no right given it under the constitution of this State or the constitution of the United States, and did not deny it the equal protection of the laws or deprive it of due process of law.

There was no error in the charge for any reason assigned. Moreover, it appears that the court actually charged, elsewhere, the provisions of the policy defining total disability.

The evidence supported the verdict, and no error appears.

Judgment affirmed. Sutton, J., concurs.