McKillips v. Railway Mail Association , 10 Wash. 2d 122 ( 1941 )

There is evidence that respondent, who was sixty-one years old at the time of the trial of this action, and who had been a railway postal clerk for twenty-nine years, is permanently totally disabled as a result of the injury he sustained in the course of his employment.

There is no evidence that he is competent, or physically able if otherwise qualified therefor, to perform clerical or other work. The evidence of gratuitous service he performed of opening the office of a mining company, answering the telephone or transferring occasionally a certificate of stock does not, the jury found, warrant a verdict that respondent could, with any degree of success, within the range of his normal capabilities, earn wages or profit in some occupation or gainful pursuit.

The inference reasonably deducible from the evidence that respondent is permanently totally disabled is that respondent is permanently disabled and wholly incapacitated "from performing any labor or following any occupation." This is in harmony with the rule that all competent evidence in the record which is favorable to the respondent we must regard as true and must give to the respondent the benefit of every favorable inference which may reasonably be drawn from such evidence. This cause was tried to a jury, and appellant's challenge to the sufficiency of the evidence, and the motion for nonsuit, admit the truth of respondent's evidence and all inferences that reasonably can be drawn therefrom. Lindberg v. Steele, 5 Wash. 2d 54,104 P.2d 940.

Counsel for respondent correctly invokes the rule enunciated inStorwick v. Reliance Life Ins. Co., 151 Wash. 153,275 P. 550, in which we reviewed the applicable authorities at length. We said:

"The argument touching this contention calls, first, for inquiry as to what is meant by the total disability clauses of these policies. For the present, we proceed with this inquiry upon the theory that the words `any other occupation or gainful pursuit,' as used in the policies of February 7, 1917, and February 10, 1920, and the words `any occupation or employment for wage or profit,' as used in the policy of November 14, 1924, are unqualified by preceding words of the respective policies, though there does seem to be room for regarding them as so limited and qualified under the doctrine of ejusdem generis.

"To what extent an insured, under policies such as these, must be disabled in order to be considered as totally disabled, entitling him to the benefits of the insurance, has been a much litigated matter in the courts of this country. Some few courts have seemed to go to the extreme of holding to the literal meaning of the total disability clauses in such policies. It seems to us, as it apparently has to a majority of the courts of the United States, that such extreme holding to literal construction has not been in keeping with the real intent of the parties to such insurance contracts. Total disability, it seems to us, is largely a relative question for determination. One who has entirely lost his reason and one who has become physically helpless to the extent that all of his physical wants have to be supplied through the efforts of others, would, we assume, be held totally disabled and entitled to the insurance benefits under such policies, even under the doctrine of literal construction. But even as to the latter, it is not impossible that one so physically disabled might be mentally able to direct and advise to the extent of earning some pecuniary compensation therefor. Under such disability clauses, we think the question of total disability should be determined in the light of the capabilities and training of the insured, especially where his capabilities and training are evidenced in the contract of insurance, as here.

"It seems to us that one is totally disabled, within the meaning of these policies, when he is so far disabled that he cannot, with any degree of success, within the range of his normal capabilities, earn wages or profit in some occupation or gainful pursuit. In Foglesong v. Modern Brotherhood of America,121 Mo. App. 548, 97 S.W. 240, there was drawn in question the meaning of a total disability clause reading: `Disability of said member which renders him unable to carry on or conduct any vocation or calling.' The plaintiff in that case was, at the time of his injury, fifty-seven years of age and had been so afflicted for some three years. He was a farmer. It was shown that he directed work to be done upon his farm and performed some light labor thereon himself, but was disabled from carrying on, other than partially, the occupation or business of a farmer, and seems to have been equally disabled from carrying on any other gainful occupation or business. It was contended that he was not totally disabled, and certain authorities holding to the literal construction view of such total disability insurance clauses were invoked. Answering this contention, Judge Broaddus, speaking for the court, observed:

"`If such is to be the construction placed upon the policy in suit, the defendant's demurrer to the evidence should have been sustained. But we are unwilling to adopt such a doctrine, the effect of which would be, practically, to reduce all such contracts to nullities, and to make them the instruments of extracting dues from policy holders without creating any liability on the part of the insurers.

"`Common knowledge of the occupations in the lives of men and women teach us that there is scarcely any kind of disability that prevents them from following some vocation or other, except in cases of complete mental inertia. We have examples of persons without hearing and without sight following a vocation — some without feet, and some without hands, engaged in business. The achievements of disabled persons are seemingly marvelous. Under defendant's theory, the plaintiff might embark in the peanut trade or follow the business of selling shoestrings or lead pencils, or follow some similar calling; in which instances, under the rule invoked, there would be no disability within the meaning of the policy. In our opinion, such was not within the contemplation of the parties. In order to carry out the intent of the parties, it is our duty to disregard the broad language used which would have the effect to defeat the purpose of the contract and render it a nullity.'"

If a question is ever foreclosed, surely the question in the case at bar is not an open one in view of Storwick v. RelianceLife Ins. Co., supra.

The judgment should be affirmed.