Opinion
No. 37944.
June 11, 1951.
1. Insurance — total and permanent disability — meaning in health and accident policies.
In order for one to be totally disabled within the meaning of a health or accident insurance policy, it is not necessary that he be wholly incapacitated to perform any duty incident to his usual employment or business, but, if the insured is prevented by his illness or injury from doing the substantial acts required of him in his business, or if his physical condition is such that, in order to effect a cure or prolongation of life, common care and prudence require that he cease all work, he is totally disabled within the meaning of such policies.
2. Insurance — total and permanent disability — instructions — contradictory.
An instruction for defendant that the plaintiff is not entitled to recover on his claim of total and permanent disability unless the jury finds from the evidence that the insured is so disabled by bodily disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for profit and that he will be so disabled continuously for the remainder of his life is erroneous and was not cured by two instructions procured by the plaintiff which correctly stated the law as set out in the foregoing headnote, since the erroneous instruction as given was not technically erroneous merely, but was conflicting and irreconcilable in substance with the two correct instructions.
3. Appeal — instruction — irreconcilable conflict.
When instructions are in hopeless conflict and cannot be reconciled and the erroneous instruction or instructions were granted at the request of appellee, and the Court cannot say that the appellant was not prejudiced thereby, the verdict and judgment will be reversed and the case remanded.
Headnotes as approved by Arrington, C.
APPEAL from the circuit court of Sunflower County; ARTHUR JORDAN, Judge.
Neill, Clark Townsend, for appellant.
I. The evidence as a whole is sufficient to sustain a verdict for appellant, if believed by the jury. This Court has already answered in the affirmative the question "May diabetes be a totally disabling disease?" Mutual Benefit Health Accident Ass'n. v. Mathis, 169 Miss. 187, 142 So. 494.
II. "Total disability" within the meaning of an insurance policy is not necessarily incapacity to perform any duty incident to usual employment. Mutual Benefit Health Accident Ass'n. v. Mathis, supra; Metropolitan Cas. Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; Equitable Life Assurance Soc. v. Serio, 155 Miss. 515, 124 So. 485; Metropolitan Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750.
III. The granting of conflicting instructions is reversible error if they tend to mislead the jury. Life Casualty Co., v. Walters, 190 Miss. 761, 198 So. 746; Freedman v. Allen, 152 Miss. 377, 118 So. 828; Jackson v. Leggett, 186 Miss. 123, 189 So. 180-182.
Forrest G. Cooper and Watkins Eager, for appellee.
I. An instruction is not erroneous which charges substantially the precise words of the contract sued on relating to the issue between the parties. Bennett v. Burkhalter, 128 Ga. 154, 57 S.E. 231; Anair v. Mutual Life Ins. Co. of New York, 114 Vt. 217, 42 A.2d 423, 159 A.L.R. 547; Prudential Ins. Co. of America v. Johnson, 265 Ky. 767; Ellsworth, et al. v. The Aetna Ins. Co., 89 N.Y. 186; Couch Cyclopedia of Insurance Law, Vol. 8, Sec. 2138, p. 6913; Metropolitan Life Ins. Co. v. Crowder, 71 Ga. 612, 31 S.E.2d 618; Goods v. Order of United Commercial Travellers of America, 174 Mo. 330, 156 S.W. 995; Volunteer State Life Ins. Co. v. Buchannan, 10 Ga. 255, 73 S.E. 602.
II. Even if the instruction complained of was erroneous it was amply cured by other instructions which appellant admits correctly stated the principles of law involved. Gilmer v. Gunter, 46 So.2d 447; Teche Lines, Inc. v. Kellar, 174 Miss. 527, 165 So. 303; New Orleans Northeastern Railroad Co. v. Bolivar, (Miss.), 44 So.2d 527; Bass v. Burnett, 151 Miss. 852, 119 So. 827; Haynes-Walker Lumber Co. v. Hankins, 141 Miss. 55, 105 So. 858; Gibson v. Wineman Son, 141 Miss. 573, 106 So. 826; Mutual Life Ins. Co. v. Vaughan, 125 Miss. 369, 88 So. 11; Friedman v. Allen, 118 So. 828.
III. Under the overwhelming weight of testimony, and in fact, under the practically undisputed testimony, a fair and just result has been reached, and no other verdict could be rendered by a jury of fair, honest and reasonable men. Smith v. Shelton, 132 Miss. 118, 95 So. 835; McMullen v. Mayo, 16 Miss. 298; Neely v. City of Charleston, 37 So.2d 495; Meridian Sanatorium v. Scruggs, 121 Miss. 330, 83 So. 532; City of Jackson v. Wright, 151 Miss. 829, 119 So. 315; Nelms Blum Co. v. Fink, 159 Miss. 372, 131 So. 817; Cartwright v. Carpenter, 7 How. (8 Miss.) 328, 40 Am.Dec. 66; Bayton v. Finnall, 4 S. M. (12 Miss.) 193; Magee v. Harrington, 13 S. M. (21 Miss.) 403; Wiggins v. McGimpsey, 13 S. M. (21 Miss.) 532; Simpson v. Bowdon, 23 Miss. (1 Cushm.) 524; Brantley v. Carter, 26 Miss. (4 Cushm.) 282; Dunlap v. Edwards, 29 Miss. (7 Cushm.) 41; Holloway v. Armstrong, 30 Miss. 504; Hanna v. Renfro, 32 Miss. 125; Welborn v. Spears, 32 Miss. 138; Hanks v. Neal, 44 Miss. 212; Memphis C.R. Co. v. Whitfield, 44 Miss. 466, 7 Am.Rep. 699; Turner v. Bird, 44 Miss. 449; Moyers v. Columbus Banking Ins. Co., 64 Miss. 48, 8 So. 205; Georgia Pac. Ry. Co. v. West, 66 Miss. 310, 6 So. 207; Blackwell v. Graham, 74 Miss. 595, 21 So. 242; Cochran v. Peeler, 47 So.2d 806; Orr v. Columbus Greenville R.R. Co., 48 So.2d 630; Standard Life Ins. Co. of the South v. Foster, 49 So.2d 391; Broach v. Wortheimer-Swartz Shoe Co., 21 So. 307; Nichols v. Gulf S.I.R. Co., 83 Miss. 126, 36 So. 192; Pascagoula St.Ry. Power Co. v. Brondum, 96 Miss. 28, 50 So. 97; St. Louis S.F.R. Co. v. Moore, 101 Miss. 768, 58 So. 471, 39 L.R.A. (N.S.) 978, Ann. Cas. 1914B, 597; Lindsey v. Holly, 105 Miss. 740, 63 So. 222; Powell v. J.J. Newman Lumber Co., 174 Miss. 685, 165 So. 299; Sykes v. Thomas, 192 Miss. 647, 7 So.2d 527; Metropolitan Life Ins. Co. v. Lambert, 128 So. 750; Jackson v. Leggett, 189 So. 180; Life Casualty Ins. Co. v. Walters, 198 So. 746; Mutual Benefit Health Accident Ass'n. v. Mathews, 142 So. 494.
The appellant, Jacob Lipnick, brought suit against the New York Life Insurance Company, appellee herein, in the Circuit Court of Sunflower County Mississippi. From a judgment for the appellee, the appellant appeals.
Since February 10, 1927, the appellant has carried two life insurance policies with the appellee. These policies provided for additional benefits in the event of total and permanent disability, which is the basis of this suit. The appellant brought suit for the benefits accruing under both policies. The provisions of the policies as to total and permanent disability are as follows: "Disability shall be considered total whenever the Insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit, provided such disability occurred after the insurance under this policy took effect and before the anniversary of the policy on which the Insured's age at nearest birthday is sixty."
The evidence in this case shows without dispute that the appellant was sixty years of age at the time this case was tried and that he had diabetes, from which disease he had been suffering since 1939; that on July 18, 1949, the appellant filed suit, claiming that he was totally and permanently disabled within the meaning and terms of the policies. The appellee answered and denied that the appellant was continuously and wholly disabled within the meaning of the provision of said policies, which trial resulted in a verdict for the appellee as aforesaid.
The main assignment of error argued by the appellant is that the lower court erred in granting the appellee the following instruction: "The court instructs the jury for the defendant that the plaintiff is not entitled to recover on his claim of total and permanent disability unless you find from the evidence that the insured is so disabled by bodily disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for profit, and that he will be so disabled continuously for the remainder of his life."
Total disability has been defined a number of times by this Court on similar provisions contained in insurance policies. In Mutual Benefit Health and Accident Association v. Mathis, 169 Miss. 187, 142 So. 494, 496, the Court said: "It is settled doctrine in this state that, (Hn 1) in order for one to be totally disabled within the meaning of a health or accident insurance policy, it is not necessary that he be wholly incapacitated to perform any duty incident to his usual employment or business, but, if the insured is prevented by his injury or illness from doing the substantial acts required of him in his business, or if his physical condition is such that, in order to effect a cure or prolongation of life, common care and prudence require that he cease all work, he is totally disabled within the meaning of such policies. Metropolitan Cas. Insurance Co. v. Cato, 113 Miss. 283, 74 So. 114; Equitable Life Insurance Society v. Serio, 155 Miss. 515, 124 So. 485, 486; Metropolitan Life Insurance Co. v. Lambert, 157 Miss. 759, 128 So. 750, 752."
In the Lambert case, supra, the defendant insurance company requested the following instruction which was refused by the lower court: "The court instructs the jury for the defendant that if you believe from the evidence in this case that the plaintiff has performed any work or engaged in any occupation for compensation or profit since the date of January 10th, 1928, then it will be your sworn duty to find for the defendant."
The Court held that the refusal of this instruction was not error.
We are of the opinion that (Hn 2) the instruction granted in this case did not correctly state the law. The appellant obtained the two following instructions:
"Instruction No. 1 for Plaintiff
"The Court instructs the jury for the plaintiff that in order for one to be totally disabled within the meaning of the insurance policies here sued on, it is not necessary that he be wholly incapacitated to perform any duty incident to his usual employment or business, and the Court instructs you that if you believe from the evidence that the plaintiff is prevented by his illness from doing the substantial acts required of him in his business, or if you believe from the evidence that his physical condition is such that common care and prudence require that he cease doing all substantial acts required of him in his business, then you will find for the plaintiff in the amount sued for, if you further believe from the evidence that the disability of plaintiff is permanent."
"Instruction No. 2 for Plaintiff
"The Court instructs the jury for the plaintiff that if you believe from the evidence that the plaintiff is not wholly incapacitated to perform any of the duties incident to his usual work, or from following any occupation, or from engaging in any business for remuneration or profit, yet, if you believe from the preponderance of the evidence that the plaintiff is prevented by his bodily disease from doing the substantial acts required of him in his business, then the plaintiff is totally disabled within the meaning of the insurance policies here sued on, and you will find for the plaintiff in the amount sued for, if you further believe from the preponderance of the evidence that the disability of the plaintiff is permanent."
The appellee argues that even if the instruction complained of is erroneous, it was cured by the above instructions. The general rule is that all instructions are to be construed together and if the jury is furnished a correct guide as to the applicable principles of law, there will be no error, although one or more of the instructions are technically erroneous. However, in the instant case, the instruction complained of did not correctly state the law with reference to total disability, was conflicting and irreconcilable with the instructions given the appellant. In Jackson v. Leggett, 186 Miss. 123, 189 So. 180, 182, the Court said: (Hn 3) "The two instructions herein set out are in hopeless conflict and cannot be reconciled. This record discloses no cure for the error. The case is reversed because these instructions did not state the law of the case. . . . (authorities cited) . . . The instruction for the appellant correctly stated the law, while those complained of given for the appellee did not. There was a `head-on' collision between the two instructions."
The evidence in this case as to whether or not the appellant was totally and permanently disabled was conflicting and presented a question for the determination of the jury under proper instructions. We are unable to say that the appellant was not prejudiced by the erroneous instruction granted.
Reversed and remanded.
The above opinion is adopted as the opinion of the Court, and for the reasons therein indicated, the case is reversed and remanded.