Opinion
6 Div. 611.
April 2, 1940. Rehearing Denied April 30, 1940.
Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.
Action to recover disability benefits under policies of life insurance by James R. Hobbs against Reliance Life Insurance Company of Pittsburgh, Pa. From a judgment for defendant, plaintiff appeals.
Affirmed.
Certiorari denied by Supreme Court in James R. Hobbs v. Reliance Life Ins. Co. of Pittsburgh, (6 Div. 686) 197 So. 62.
The following requested charges were refused to plaintiff:
"3. I charge you that to constitute total disability it is not necessary that the disability if any should render the insured physically unable to transact any kind of business pertaining to his occupation, or any other occupation or gainful pursuit, but it is sufficient if the disability is such that common care and prudence requires the insured to desist from transacting such business in order to effect a cure."
"5. I charge you that if you are reasonably satisfied from the evidence in this cause that prior to reaching age sixty the plaintiff's disability, if any, was of such a character and to such an extent that common care and prudence required the plaintiff to desist from his labors and rest, you may consider such facts, if you are reasonably satisfied from the evidence such were the facts in arriving at your verdict in this case."
These charges were given at defendant's request:
"12. I charge you that a person is not totally disabled within the meaning of the policy sued on who does substantially all of the material acts necessary to the prosecution of his business or occupation, in substantially his customary and usual manner, even though the doing of such acts is detrimental to his health and in the interest of his health he should have refrained from doing them."
"18. If you are reasonably satisfied from the evidence that the plaintiff performed substantially all of the material acts necessary to the prosecution of his work as Pastor of the First Baptist Church of Birmingham, in substantially his usual and customary manner, up to the time he became 60 years of age, your verdict should be for the defendant, even though you may be further reasonably satisfied from the evidence that the plaintiff because of disease should not have performed his work."
"14. One of the requirements of the provisions of the policy sued on is that the insured must be totally disabled. Total disability is to be distinguished from partial disability. If an insured is partially, but not totally disabled, he would not be entitled to recover under the policy. An insured who performs substantially all of the material acts necessary to the prosecution of his business or occupation, in substantially his customary and usual manner, is only partially and not totally disabled, even though he is handicapped in the performance of such acts, and he does not do as much work as he did formerly and he fails or is unable to perform other acts and duties which he formerly performed, but which, while they may be desirable, are not necessary to the prosecution of his business or occupation."
Randolph Hobbs, H. H. Grooms, and Coleman, Spain Stewart Davies, all of Birmingham, for appellant.
To constitute total disability it is not necessary that the disability, if any, should render the insured physically unable to transact any kind of business pertaining to his occupation, or any other occupations or gainful pursuit, but it is sufficient if the disability is such that common care and prudence requires the insured to desist from transacting such business. United States Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462; Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909; Ellis v. New York Life Ins. Co., 214 Ala. 166, 106 So. 689; New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547; New York Life Ins. Co. v. Torrance, 26 Ala. App. 38, 153 So. 458, certiorari denied 228 Ala. 286, 153 So. 463; Jefferson Standard Life Ins. v. Simpson, 228 Ala. 146, 153 So. 198; Equitable L. Assurance Soc. v. Watts, 230 Ala. 297, 160 So. 713; United States v. Acker, 5 Cir., 35 F.2d 646. An honest effort to labor which ought not in fact to be made, should not, nor does it, defeat a right to indemnity. Authorities, supra. Charges which categorically instruct the jury that if the insured performs substantially all the material acts necessary for him to perform in substantially his customary and usual manner, that the jury's verdict should be for the insurer, pretermit the question of ability or lack of ability to perform, and are improperly given. New York Life Ins. Co. v. Torrance, 228 Ala. 286, 153 So. 463; John Hancock Life Ins. Co. v. Schroder, 235 Ala. 655, 180 So. 327; Authorities, supra.
Cabaniss Johnston and Lucien D. Gardner, Jr., all of Birmingham, for appellee.
The test of total disability preventing an insured from performing any and every kind of duty pertaining to his occupation is: Was the insured prevented thereby from performing substantially all of the material acts necessary to the prosecution of his business or occupation, in substantially his customary and usual manner. New York Life Ins. Co. v. Torrance, 224 Ala. 614, 141 So. 547; New York Life Ins. Co. v. Torrance, 26 Ala. App. 38, 153 So. 458, certiorari denied 228 Ala. 286, 153 So. 463; Jefferson Standard L. Ins. Co. v. Simpson, 228 Ala. 146, 153 So. 198; Protective L. Ins. Co. v. Wallace, 230 Ala. 338, 161 So. 256; Equitable L. Assur. v. Davis, 231 Ala. 261, 164 So. 86; John Hancock Mutual L. Ins. Co. v. Schroder, 235 Ala. 655, 180 So. 327. An insured who actually performed substantially all of the material acts necessary to the prosecution of his business or occupation, in substantially his customary and usual manner, for two and one half years after he became sixty years of age, was not totally disabled before attaining sixty years of age merely because out of common care and prudence he should have desisted from his work in order to effect a cure, since in fact he did not desist. New York L. Ins. Co. v. Torrance, supra; Cato v. Ætna Life Ins. Co. 164 Ga. 392, 138 S.E. 787; Lyle v. Reliance L. Ins. Co., 197 Ark. 737, 124 S.W.2d 958.
The suit by appellant was to recover under the "permanent total disability" clause of two separate life insurance policies issued by defendant, appellee.
In each it is provided that in order for the disability benefit here sued for to attach, the insured must become disabled before he attains the age of sixty years.
There is in reality but one question in the case. The plaintiff is entitled to the monthly income he seeks to recover if he became totally and presumably permanently disabled before he became sixty years of age.
The evidence shows and the jury has found that the plaintiff performed substantially all of the material acts necessary to the prosecution of his work as pastor of the First Baptist Church of Birmingham, in substantially his customary and usual manner, until he was almost sixty-three years of age.
The evidence also shows that for almost three years before he became sixty, the plaintiff was suffering from a heart condition which made it inadvisable for him to work, that work or any exertion would endanger his life, and that he was advised to stop working. The evidence further shows that the plaintiff disregarded this advice and continued as pastor of his church.
The plaintiff claims that notwithstanding his performance of substantially all of the material acts necessary to the prosecution of his work, in substantially his customary and usual manner, for two and one-half years after he became sixty, nevertheless he is entitled to be classed as totally disabled before attaining the age of sixty by reason of the fact that out of common care and prudence he should have desisted but did not desist from his work.
The defendant contends that under these circumstances the plaintiff is not entitled to the benefits for total disability prior to attaining age sixty.
The trial court followed the defendant's contention, submitting to the jury the question of whether what the plaintiff did before becoming sixty constituted the performance of substantially all of the material acts necessary to the prosecution of his work, in substantially his usual and customary manner, and as stated, the jury determined this question adversely to plaintiff.
If the plaintiff's contention that he is entitled to the benefits for total disability before attaining age sixty notwithstanding he performed substantial and profitable work, as indicated above, for two and one-half years thereafter be correct, the judgment should be reversed. If on the other hand the defendant's contention is correct, the judgment should be affirmed.
It is admitted that the provisions in the policies sued on, insofar as here involved, are similar in all respects to the provisions in the policies the basis of the litigation giving rise to the decision in New York Life Insurance Company v. Torrance, 224 Ala. 614, 141 So. 547.
So we feel that we may repeat, here, what was said for this court by our late, well beloved, and lamented brother, Wm. H. Samford, in the second appeal in the New York Life Insurance Company v. Torrance case, supra, viz: "So far as this appeal is concerned, the law of this case is written for this court in New York Life Insurance Company v. Torrance, 224 Ala. 614, 141 So. 547, 550. Code 1923, § 7318." New York Life Insurance Company v. Torrance, 26 Ala. App. 38, 153 So. 458, certiorari denied Id., 228 Ala. 286, 153 So. 463.
And that just about settles the matter. Above, we have indicated the decisive point of difference between the parties, here, as to the law that governs. The opinion in the New York Life Insurance Company v. Torrance case which was decided by the Supreme Court ( 224 Ala. 614, 141 So. 547) dealt with the identical point; and decided the question involved adversely to the contention here urged by appellant. Of course, under the provisions of Code 1923, Sec. 7318, there is nothing for us to do but follow the holding there announced.
Perhaps, in order to present the matter in issue more clearly, so that, if the Supreme Court desires to depart from what we understand to be its clear holding — adverse to appellant's present contention — in the New York Life Insurance case, supra, it may have the question squarely before it, we should say that, as we read the decision in that case; the opinion by that court on certiorari on the second appeal, which was decided by this court ( 228 Ala. 286, 153 So. 463); and all subsequent decisions on similar questions by the Supreme Court which have come under our scrutiny (a very large number of which have been cited in the briefs filed in this cause), the trial court did not err in refusing to give to the jury at appellant's request written charges 3 and 5; nor in giving to the jury at appellee's request written charges 12, 18 and 14.
The above holding on our part illustrates our view that, under the law as we believe it to be at present written in the books, there was no error committed by the court below in the refusal of any of appellant's written, requested charges, which were refused; and no error in giving to the jury at appellee's request the written charges shown to have been so given.
Appellant's able counsel argue vigorously that this court, on the second appeal, in effect overturned the holding by the Supreme Court, on the first appeal, in the New York Life Insurance Company v. Torrance case, supra; and that subsequently the Supreme Court has followed the law in said New York Life Insurance Company v. Torrance case, as announced by this court.
But the said counsel are in error. Not only could we not nullify the holding by the Supreme Court in question (Code 1923, Sec. 7318), but we think a reading of our opinion discloses that we did not desire to do so.
We think what we have written will serve to demonstrate our view that there is merit in no assignment of error urged upon our attention.
Our experience both at the bar and upon the bench enables us to share with appellant's counsel their undoubted surprise at the verdict returned by the jury trying the case.
But if the general affirmative charge should have been given in favor of either side, it should have been the appellee.
And surprising though the verdict was, it was amply supported by the evidence, under the law as we believe it to be.
So the judgment must be affirmed. And it is so ordered.
Affirmed.