As the disability arose while the policy was in effect the subsequent cancellation could not affect a claim which had already arisen. Pete v. Metropolitan Life Insurance Co., La. App., 171 So. 868; Dossey v. Life Casualty Insurance Co. of Tennessee, La. App., 177 So. 427. We agree with the district court in allowing recovery under the policies.
Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 (1951); Nomey v. Pacific Mut. Life Ins. Co., 212 La. 820, 33 So.2d 531 (1947); Strauss v. New York Life Ins. Co., 204 La. 202, 15 So.2d 61 (1943); Harris v. New York Life Ins. Co., 195 La. 853, 197 So. 579 (1940); Crowe v. Equitable Life Assur. Soc., 179 La. 444, 154 So. 52 (1934); Miller v. American Cas. Co., 263 So.2d 398 (La.App. 4th Cir. 1972), writ refused, 262 La. 1151, 266 So.2d 441; Felker v. Aetna Life Ins. Co., 234 So.2d 758 (La.App. 1st Cir. 1970), writ refused, 256 La. 377, 236 So.2d 503; Pete v. Metropolitan Life Ins. Co., 171 So. 868 (La.App. 1st Cir. 1937); Cates v. Jefferson Standard Life Ins. Co., 159 So. 168 (La.App. 2d Cir. 1935); Manuel v. Metropolitan Life Ins. Co., 139 So. 548 (La.App. 1st Cir. 1932). In the instant case, plaintiff had worked at his occupation as a sawyer for many years prior to being injured as a result of an automobile accident on Saturday, July 27, 1972.
It is a general legal contract acts as a waiver of the contractual condition or provision requiring proof of loss or filing of a medical claim. 44 Am. Jur.2d Insurance § 1517; Thompson v. State Assur. Co., 160 La. 683, 107 So. 489 (1926); Pete v. Metropolitan Life Ins. Co., 171 So. 868 (La.App. 1st Cir. 1937); Standard Brass Mfg. Co. v. Maryland Casualty Co., 153 So.2d 475 (La.App. 4th Cir. 1963); see also La Societe de Bienfaisance des Arts et Metiers v. Morris Co., 24 La.Ann. 347 (1872). The defendant's denial of liability removed it and the plaintiff from the contractual requirements which appertained before such a denial, and it cannot now make use of these contractual terms so as to deny the plaintiff an equal position in the adversary trial proceedings or deny her the benefit and protection of our Code of Civil Procedure.
"`The disability should, we think, be deemed total to do work of any reasonable character, within the intendment of the law, whenever it appears that the employee, due to the injury, is unable to perform work of the same or similar description that he is accustomed to perform.' "In Pete v. Metropolitan Life Ins. Co., La.App., 171 So. 868, the court says: "`Total and permanent disability from performing any work for compensation or profit does not require that insured become absolutely helpless, but merely requires such disability as renders him unable to perform substantial and material part of his occupation in usual and customary way.'
Cases in other jurisdictions have also adhered to this approach. In Pete v. Metropolitan Life Insurance Co., 171 So. 868 (La.App. 1937), the insurance policy provided that the insured would receive his one thousand dollar ($1,000.00) life insurance benefit if he became totally and permanently disabled before the age of sixty.
Within ten days of this notice, the company received a report from Mrs. LaCour's orthopedic surgeon stating she was only partially disabled. To establish manifest error in the trial court's holding (that Mrs. LaCour failed to establish she was disabled within the meaning of the policy), she cites Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 1951); Pete v. Metropolitan Life Ins. Co., 171 So. 868 (La.App. 1 Cir. 1937), and Dennis v. Business Men's Assurance Company of America, 175 So.2d 431 (La.App. 2 Cir. 1965). These cases recognize the rule that total disability is a relative matter and must rest chiefly on the peculiar circumstances of each case and particularly upon capabilities of the person injured.
Denial of liability is equivalent to a declaration that the insurer will not pay although proofs are furnished in accordance with the policy. 29A Am.Jur. 1431; Pete v. Metropolitan Life Ins. Co., La.App., 171 So. 868. The case of J.S. Fraering, Inc. v. Employers Mutual Liability Insurance Co. of Wisconsin, 5 Cir., 242 F.2d 609, cited by defendant, is not apropos for there the insurer had done nothing which could be construed as a waiver of the requirement of giving notice.
However, the law does not require the injured or disabled party to perform a different type of job, the law provides for total and permanent disability if the injured party is unable to substantially perform work of the same reasonable character. "In Stieffel v. Valentine Sugars, Inc., 188 La. 1091, 179 So. 6, 15, the Supreme Court, in quoting from Pete v. Metropolitan Life Insurance Company, La. App., 171 So. 868, said: " 'Total and permanent disability from performing any work for compensation or profit does not require that insured become absolutely helpless, but merely requires such disability as renders him unable to perform substantial and material part of his occupation in usual and customary way.
However, the law does not require the injured or disabled party to perform a different type of job, the law provides for total and permanent disability if the injured party is unable to substantially perform work of the same reasonable character. In Stieffel v. Valentine Sugars, Inc., 189 La. 1091, 179 So. 6, 15, the Supreme Court, in quoting from Pete v. Metropolitan Life Insurance Company, La. App., 171 So. 868, said: "Total and permanent disability from performing any work for compensation or profit does not require that insured become absolutely helpless, but merely requires such disability as renders him unable to perform substantial and material part of his occupation in usual and customary way."
When he did so he suffered considerable pain. The Supreme Court, in holding that he was unable to do work of any reasonable character, quoted with approval from Pete v. Metropolitan Life Insurance Co., La. App., 171 So. 868, as follows: " '* * * The provision "does not mean that plaintiff must, in order to avail himself of these benefits, become absolutely helpless, but merely requires such disability as renders him unable to perform the substantial and material part of his occupation." ' "