Provident L. Ins. Co. v. Anding , 144 Miss. 277 ( 1926 )

^* Corpus Juris-Cyc. References: Accident Insurance, 1CJ, p. 511, n. 51; As to when insured is deemed to be totally and continuously unable to transact all business duties, see note in 24 A.L.R. 203; 14 R.C.L. 1315; 3 R.C.L. Supp. 381; 4 R.C.L. Supp. 960; 5 R.C.L. Supp. 812. Pearlie Anding brought his suit against the Provident Life Accident Insurance Company for six hundred dollars on account of an injury caused by a sliver of steel penetrating his eye, claiming that under the monthly indemnity clause for loss of time he lost six months, and that the defendant, accident company, was liable to him for fifty dollars a month for six months on account of said accident because of part III, section A of said policy, which reads as follows:

"If the injury hereinbefore described shall not result in any of the losses mentioned in part II, but shall from the date of the occurrence of the accidental event causing the injury, independently and exclusively of all other causes, wholly and continuously disable and prevent the insured from performing each and every kind of duty pertaining to his business or occupation, and shall require and receive the regular treatment of a legally qualified physician or surgeon, the company will pay the monthly accident indemnity hereinbefore specified for the period of such total disability, not exceeding seven months."

We do not deem it necessary to set out other parts of the policy, nor set out the pleadings, to which there is no objection here. We think this record shows that the appellee, Pearlie Anding, was employed, paid, and was insured by the appellant as an automobile mechanic, and that on June 11, 1925 while working as a paid automobile mechanic, and engaged in repairing an automobile, Anding's right eye was injured by a piece of steel. The proof further shows that Anding piddled (to use his own language) about the shop from June 11th until July 5th, but that his pay as an automobile mechanic stopped because of his inability to work; that he sometimes washed a car, drove a car somewhere in the town, and swept about the place, and that his employer gave him a "little something," but he did not receive full wages; that he was unable to perform the usual work theretofore performed, although he had, before his injury, done such things as above described when ordered so to do by his employer, who was a white man, he being a negro.

He seems to have been treated by several doctors, and was later sent to a hospital in New Orleans, where he remained three weeks the first time, and later returned for further treatment. The plaintiff was under orders from his physician, when he first got hurt, not to work. These are about the essential facts in this case necessary for us to set out here.

The appellant, the accident insurance company, contends that it was entitled to a peremptory instruction in so far as the above section is concerned.

We think the case was fairly submitted to the jury as to whether or not the insured was prevented by his injury from doing all the substantial acts required of him in his business; that the above-quoted section applies and renders the company liable, notwithstanding the fact that he may occasionally perform some single act connected with the business and pertaining to his occupation. This view of the law is upheld in the case ofMetropolitan Insurance Co. v. Cato, 113 Miss. 283, 74 So. 114, wherein the above-quoted section of an accident insurance policy was before this court, and we think this case disposes of the question raised here that the case was properly submitted to the jury, and we find no reason for disturbing the verdict of the jury rendered in behalf of the plaintiff in this case.

Affirmed.