Opinion
No. 35126.
November 23, 1942. Suggestion of Error Overruled December 21, 1942.
INSURANCE.
One who was obliged to resign his employment and to go to hospital for about three months because of osteomyelitis in a leg, but who thereafter was appointed postmaster at an annual salary and performed all of his duties satisfactorily, was not entitled to disability benefits under accident and health policy providing that insured is entitled to benefits whenever he is "wholly disabled by bodily injury or disease" so as to be prevented from engaging in "any occupation" whatsoever for remuneration or profit.
APPEAL from the circuit court of Lincoln county, HON. J.F. GUYNES, Judge.
Watkins Eager, of Jackson, for appellant.
In this case no one testified that appellee is not fully qualified to act as postmaster at Brookhaven, Mississippi; no one testified that appellee failed to perform a single duty imposed on him by that position. Both the appellee and his superior state that he is fully performing all of his duties as postmaster. Under the evidence of this case, no one could have testified that Mr. McGehee's position is a sinecure.
The contention that under this evidence and the policy contract the appellee is entitled, notwithstanding his gainful employment as postmaster, to receive disability benefits is not supported by either reason or authority.
The appellee, as the insured under the policy of life insurance containing total and permanent disability provisions, failed to meet the burden of proving by a preponderance of the evidence that he was entitled to the benefits of the total and permanent disability provisions of the policy.
Equitable Life Assurance Society v. Henderson, 177 Miss. 815, 172 So. 321; New York Life Ins. Co. v. Reedy, 181 Miss. 774, 180 So. 607; Columbian Mutual Life Ins. Co. v. Jones, 174 Miss. 33, 163 So. 687; Scales v. Home Life Ins. Co. (C.C.A. 5), 89 F.2d 580; New Amsterdam Casualty Co. v. Perryman, 162 Miss. 864, 140 So. 342; Life and Casualty Ins. Co. of Tenn. v. Jones, 112 Miss. 506, 73 So. 566; Shipp v. Metropolitan Life Ins. Co., 146 Miss. 18, 111 So. 453; New York Life Ins. Co. v. Bain, 169 Miss. 271, 152 So. 845; Mutual Benefit Health Accident Ass'n v. Mathis, 169 Miss. 187, 142 So. 494; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; American Bankers' Ins. Co. v. White, 171 Miss. 677, 158 So. 346; Equitable Life Assurance Society v. Serio, 155 Miss. 515, 124 So. 485; Metropolitan Casualty Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; New York Life Ins. Co. v. Best, 157 Miss. 571, 128 So. 565; Columbian Mutual Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225; Brotherhood of Railroad Trainmen v. Nelson, 166 Miss. 671, 147 So. 661; Eminent Household of Columbian Woodmen v. Bunch, 115 Miss. 512, 76 So. 540; Mutual Life Ins. Co. of New York v. Hebron, 166 Miss. 145, 146 So. 445; Mutual Life Ins. Co. v. Marsh (Ark.), 56 S.W.2d 433; Woods v. Central States Life Ins. Co. of St. Louis (Neb.), 271 N.W. 850; Dukes v. Jefferson Standard Life Ins. Co. (S.C.), 174 S.E. 463; Commonwealth Life Ins. Co. v. Brandon (Ky.), 97 S.W.2d 2.
Hugh V. Wall and R.L. Jones, both of Brookhaven, for appellee.
We submit that under the holdings of this court and all other courts with which we are familiar this appellee is entitled to recover and the trial court followed the decisions of this court and other courts in holding that the appellee was entitled to recover.
Equitable Life Assurance Society v. Serio, 155 Miss. 515, 124 So. 485; Metropolitan Casualty Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; Provident Life Accident Ins. Co. v. Anding, 144 Miss. 277, 109 So. 670; Shipp v. Metropolitan Life Ins. Co., 146 Miss. 18, 111 So. 453; New York Life Ins. Co. v. Best, 157 Miss. 571, 128 So. 565; Columbian Mutual Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225; Woods v. Central States Life Ins. Co. of St. Louis (Neb.), 271 N.W. 850; Commonwealth Life Ins. Co. v. Brandon (Ky.), 97 S.W.2d 2; Hagman v. Equitable Life Assurance Society of the United States (Ky.), 282 S.W. 1112.
Appellee is the holder of a policy of accident and health insurance issued in 1919 by appellant company. Among the provisions of the policy is the following: "Whenever the Company receives due proof . . . that the Insured . . . has become wholly disabled by bodily injury or disease so that he is, and will be presumably, thereby permanently and continuously prevented from engaging in any occupation whatsoever for remuneration or profit," the company will, during such disability, pay to the insured annually a sum equal to one-tenth of the face of the policy, and will also waive all annual premiums.
Appellee has for sometime been suffering from osteomyelitis in the right leg and the disease had made such progress that, in 1934, appellee was obliged to resign his employment, and go to a hospital where he remained for about three months. Due proof having been furnished, the company began making the annual payments under the policy and continued so to do through 1939.
In 1937, appellee was appointed postmaster of Brookhaven, a position which then paid an annual salary of $2,900 and which has now been raised to $3,000. Because of this, but not until full time was allowed to see how appellee got along in his work, the company discontinued the disability payments in 1939, and the present action was instituted by appellee to recover the two annual payments alleged to have become due, together with the annual premiums paid by appellee under protest for the same period.
It is admitted that appellee, as postmaster, has at all times since his appointment fully discharged, and is now performing all his duties with entire satisfaction to the government and to the community which his office serves. His duties do not require any physical or manual labor. His functions are supervisory, directory, and executive, and solely so. All manual or physical or clerical duties are performed by others employed and paid by the government. Appellee suffers some additional pain as the result of his movements from his home to the office and return, and in the supervisory movements, although of a limited nature, which are incident to his position; but he himself admits that this does not substantially hamper him in the performance of his duties and that even if he remained constantly at home without any employment at all, he would constantly be in some pain. And the only physician who was asked the particular question testified to the effect that, as an over all proposition, it would be better for a person in appellee's condition to have an employment such as this than to remain wholly idle at home.
It will be noted that the disability covered shall be one which prevents the insured from engaging in any occupation whatsoever for remuneration or profit. The statement of the facts discloses upon the face thereof that appellee is neither prevented nor substantially hampered in and about his present excellent employment. The case does not fall within Columbian Mutual Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225, and cases of similar import, relied on by appellee, but rather is controlled by Brotherhood of Railroad Trainmen v. Nelson, 166 Miss. 671, 147 So. 661, 148 So. 179. Compare Metropolitan Life Ins. Co. v. Pitcher, 5 Cir., 108 F.2d 621, and see particularly first column, page 622.
This court, in agreement with the majority in other states, has been liberal towards the insured in the interpretation and application of provisions in health policies in regard to total and permanent disability and as to when the disability is such as to prevent the insured from engaging in any occupation or employment for compensation or profit. We have endeavored to give to such provisions a practical and common-sense construction, consonant with the equities of the particular case, and to grant relief according to substance rather than form; but we can assume no such authority as to strike from the contract the qualifying clause that the disability must be such as to prevent — substantially prevent — the insured from engaging in any gainful occupation whatsoever, and this we would have to do in order to sustain the judgment in this case.
Reversed, and judgment here for appellant.