Opinion
Nos. 27164 and 27165
Decided June 7, 1939.
Insurance — Policy provisions liberally and fairly construed — Total and permanent disability — Inability to pursue regular vocation or employment — Charge to jury — Refusal to charge upon only one related policy provision, not error.
1. In case of doubt, provisions in a policy of insurance for the payment of total and permanent disability benefits must be liberally and fairly construed in order that the true intent of the contracting parties may be given full effect.
2. An insured, afflicted with duodenal ulcer and unable by reason thereof to pursue his regular vocation or employment, is "totally and permanently disabled" within the terms of a policy of insurance which contains a provision for the payment of disability benefits in case the insured should "become totally and permanently disabled" in such manner that he "will for lifetime be unable to perform any work or engage in any business for compensation or profit."
3. Where a policy of insurance contains two or more related provisions it is not error for the trial court to refuse to charge the jury with respect to only one of them.
CERTIFIED by the Court of Appeals of Cuyahoga county.
The parties will be referred to as they appeared in the trial court.
Both cases involve the same parties, similar facts and the same question of law. They will therefore be treated and considered together.
The controversy centers around a policy of insurance in the principal sum of $2,500, issued by defendant, the Metropolitan Life Insurance Company, upon the life of plaintiff, John J. Gibbons. The policy carried a provision for the payment of total and permanent disability benefits, which reads:
"Provision for total and permanent disability benefits: If while this policy is in full force and effect, and before default in the payment of any premium, the company receives due proof that the insured, as a result of causes originating after the delivery of this policy has become totally and permanently disabled and will for lifetime be unable to perform any work or engage in any business for compensation or profit, the company will allow the following benefits:
"(a) Provided said disability occur before the insured attains sixty years of age, but not otherwise, the company, commencing with the anniversary of the policy next following receipt of such proof, will waive payment of each premium becoming due during such disability, and, in addition, commencing six months from the receipt of such proof, will pay each month, during the continuance of such disability, to the insured, or to the person designated by him for the purpose, or if there be no such person designated, then to such person as may be found by the company to have the care of the person of the insured, a monthly annuity of $10 for each $1,000 of the face amount of insurance under the policy. The waiving of premiums and the monthly annuity payments shall be in addition to all other benefits and shall not affect any provision in the policy, except if there be any indebtedness under the policy, the interest on such indebtedness shall, if not otherwise paid, be deducted from the monthly annuity payments. The insured shall not have the right to commute such monthly annuity payments."
On January 31, 1934, while the policy was in full force and effect, plaintiff, as insured, furnished the Metropolitan Life Insurance Company with proofs in support of his claim that he became totally and permanently disabled. Defendant, however, refused to pay any disability benefits or to waive the premium payments.
Cause No. 27165 was instituted by plaintiff in the Municipal Court of Cleveland on August 6, 1936, for the recovery of premiums paid from April 6, 1933, to August 6, 1936, and also for the recovery of disability benefits payable under the policy at the rate of $25 per month, covering the same period.
Plaintiff alleged in his petition that "in April of 1933, the plaintiff who was employed by the American Steel Wire Company, suffered with hemorrhages and ulcers and was sent to St. Alexis Hospital for a period of seven weeks, and then was confined to his bed at home for quite a long period, and due to said hemorrhages and ulcers has become totally and permanently disabled and will for lifetime be unable to perform any work or engage in any business for compensation or profit; that at the time said plaintiff was stricken or disabled he was 59 years of age."
Defendant, in its answer, admitted the issuance of the policy, but denied that plaintiff became totally and permanently disabled prior to his sixtieth year of age so as to entitle him to the total and permanent disability benefits provided for in the policy.
The answer further alleged that the cause of any disability which plaintiff may claim originated prior to the date of the delivery of the policy.
The cause was tried to a jury which returned a verdict for $1,299.25. By agreement of the parties, a remittitur of $323.97 was allowed and judgment was entered for plaintiff for the sum of $975.28 and costs of suit.
An appeal on questions of law was prosecuted to the Court of Appeals of the Eighth Appellate District, where the judgment was affirmed, with one judge dissenting. Thereafter, a motion for rehearing was granted and the cause was assigned for hearing to the judges of the Court of Appeals of the Fifth Appellate District, sitting by designation, which court set aside the judgment and remanded the cause for trial.
The new trial resulted in a verdict for plaintiff in the sum of $1,313.34, which amount was, by a nunc pro tunc entry, reduced to $1,019.62, for which judgment was rendered.
Appeal was again prosecuted and the judges of the Court of Appeals of the Ninth Appellate District sitting by designation in the Eighth Appellate District, held that substantial justice had been done and affirmed the judgment of the trial court.
Cause No. 27164 was filed by plaintiff in the Municipal Court of Cleveland on March 26, 1937. The cause arose out of the same policy, and the petition is in substantially the same form as that in the preceding case, with the exception that the latter suit was instituted for the recovery of premiums paid and disability benefits payable for the period from August 6, 1936, to March 26, 1937. A supplemental petition was filed in the same action, covering the period from August 6, 1936, to October 26, 1937. The answer of the defendant was substantially the same as that filed in the first case. Plaintiff filed a reply, alleging that the defensive matter set up in the answer was res judicata by reason of the judgment in the first case mentioned above.
At the trial, the court in its charge to the jury defined total and permanent disability thus: "By total disability we mean this: That he was completely unfitted and unable to perform the work that he had been pursuing up to the time that he did become disabled, should you find by a greater weight of the evidence that he did so become disabled.
"And with reference to the meaning of the words permanent disability, you are to consider not the whole span of his life, past and future, but what you find by the greater weight of the evidence to be the fact as to his total inability to work in the period covered by this lawsuit."
Before argument to the jury, defendant requested that the following charges be given, both of which were refused, to wit:
"The court instructs you as a matter of law that if you find from the evidence that the plaintiff is physically able to engage in any work for wage or profit, then your verdict should be for the defendant." And also:
"The court instructs you as a matter of law that if you find from the evidence that plaintiff has failed to show that he is totally and permanently disabled so as to be unable to perform any work or engage in any business for compensation or profit, then your verdict should be for the defendant."
After the general charge to the jury had been delivered the request was renewed by defendant and again denied by the trial court. Defendant excepted specifically to so much of the charge as related to the meaning of total and permanent disability, and generally to the charge as a whole.
The trial resulted in a verdict for plaintiff in the sum of $513.22, which was reduced by remittitur to $494.73, for which amount judgment was rendered.
On appeal, the Court of Appeals of the Ninth Appellate District, sitting by designation in the Eighth Appellate District, heard this case at the same time it heard the case previously mentioned, and affirmed the judgment of the Municipal Court in both. Both cases were certified to this court on the ground of conflict.
Mr. Carl L. Erb, Messrs. Harrison Marshman, Mr. William J. Hawley and Mr. J.W. McCarron, for appellee.
Messrs. Bushnell, Burgess, Fulton Chandler, for appellant.
The basic question involved in both cases is whether an insured, afflicted with duodenal ulcer and unable to pursue his regular vocation or employment, is totally and permanently disabled within the terms of a policy of insurance which contains a provision for the payment of disability benefits in case the insured should "become totally and permanently disabled" in such manner that he "will for lifetime be unable to perform any work or engage in any business for compensation or profit."
Determination of this question depends upon the further question as to what construction shall be placed upon the language "totally and permanently disabled and will for lifetime be unable to perform any work or engage in any business for compensation or profit."
Defendant argues for a literal and plaintiff argues for a liberal construction.
In case of doubt, provisions for the payment of total and permanent disability benefits must be liberally and fairly construed in order to give effect to, rather than frustrate, the true intent of the contracting parties. It is generally held that insurance policies should be given a liberal construction in favor of the insured. To construe the language "totally and permanently disabled * * * to perform any work or engage in any business for compensation or profit" literally is to say that to entitle an insured to disability benefits he must have become so utterly helpless as to be incapable of performing work of any kind for remuneration or profit. Such could not have been the intention of the contracting parties. Counsel for defendant deny such intention when they say in their brief: "It is not our contention that a person need necessarily be bedridden in order to recover under the policy sued upon. The mere fact that insured might be able to sell shoe strings or pencils on the street corner would not necessarily disqualify him from receiving benefits." In other words, defendant, in effect, concedes that the language is not to be strictly construed. Although so conceding, defendant nevertheless argues that: "Under the court's charge, the insured, even though he could earn substantial sums of money at an occupation or business other than his own, would be considered totally disabled." The argument, in effect, is that although the insured be totally incapacitated from performing the work for which he is qualified, he is not to be deemed totally disabled from doing work for which he is not qualified. The parties to the contract of insurance must be held to have contemplated a total disability to perform any work for compensation or engage in any business for profit for which the insured was qualified. Such was, in substance and effect, the charge to the jury in both cases.
For what was plaintiff qualified? The record discloses that plaintiff commenced to work for the American Steel Wire Company at the age of twelve, and continued working for that company for a period of 48 years. The highest position he attained with the company was that of night roll superintendent, at a wage of $383 per month. His duties included adjusting rolls, changing rolls and looking after the mills in general. His work brought him to places of varying degrees of temperature, ranging anywhere from zero to 200° or 210° F. His work required him to handle heavy wrenches and hammers in connection with his duties of adjusting or changing rolls. For this work he was qualified through his years of experience. On April 6, 1933, at the age of 59, he was seriously stricken with ulcers and suffered a severe hemorrhage. He was taken to the hospital where he spent a number of weeks and was thereafter confined to his bed at home for a number of months. As a result of his illness, his weight dropped from 185 pounds to about 160 pounds. He went back to work as a watchman and worked for three or four weeks. Although his only duty at this new type of work consisted in seeing that the lights were lit in the yard and at the gates, he was compelled to abandon even this light work for the reason that he fatigued easily and was unable to walk about in connection with his work. He has not been able to resume work since, so the record discloses. He is no longer able to perform the work for which he was qualified. He is totally disabled from performing the work for which he was qualified, and the jury so found.
Is plaintiff's disability permanent within the meaning of the policy? Defendant offered medical testimony of Doctor Biskind, who examined plaintiff at its request. The doctor testified:
"Q. Now, doctor, may a patient have such a hemorrhage and be temporarily totally disabled and then recover and be able to engage in many forms of work or labor for compensation or profit? A. Yes, Sir."
Doctor Biskind examined the plaintiff in June of 1935, at his office, and testified:
"Q. * * * When did you examine him? A. I examined him at the time of the first visit to my office.
"Q. And that was in June, 1935? A. Right, Sir.
"Q. And what did you find? A. On the basis of his history and physical examination, I felt the man was suffering from a chronic duodenal ulcer.
"Q. And what did you find as to his disability? * * * [Objection overruled].
"Q. Go ahead, doctor. A. I felt at that time, in view of the history that he had given me of a recent hemorrhage, that he was disabled but I did not feel this disability would be permanent.
"Q. Did you find he was temporarily disabled? A. Yes, sir." In cause No. 27164, the testimony was substantially to the same effect. Plaintiff testified that since the institution of the previous suit he had again suffered hemorrhages from the ulcer, one in December, 1936, and one in or about September, 1937; and that he is unable to work.
Doctor Beams, who examined plaintiff about one week before the trial, at the request of defendant, testified:
"Q. And, doctor, from your examination of the plaintiff, have you an opinion as a physician? A. I have.
"Q. Whether or not from a medical point of view he is physically able to do various forms of work? A. I have.
"Q. Or for wage or profit? A. I have.
"Q. What is your opinion? A. I think he is able to work."
The general context of Doctor Beam's testimony was to the effect that while disability results from such hemorrhages, the patient can resume work when the hemorrhages are ended, and that the disability in all instances is temporary.
The words "permanent disability," like the words "total disability," are not to be literally construed. Literal construction would foreclose any action on a policy until after death. In no other way could permanence of disability be literally determined. It is our opinion that disability need not continue until death in order to be regarded as permanent. See 7 Couch on Insurance, 5782, Section 1672. Nor are the words "permanent disability" and "total disability" to be construed apart from the rest of the provisions of the policy. On the contrary, they must be read in connection with all related provisions contained in the policy. In no other manner can the true intent and meaning of the words be reasonably determined.
Contained in the policy is a provision which reads:
"Notwithstanding proof of disability may have been accepted by the company as satisfactory, the insured shall at any time, but not oftener than once a year, on demand from the company, furnish due proof of the continuance of such disability and permit examination by a medical examiner of the company; and if the insured shall fail to furnish such proof, or if the insured is able to perform any work or engage in any business whatsoever for compensation or profit, no further premiums will be waived or allowed to accumulate as an indebtedness against the policy, nor will any further monthly annuity payments be made."
This provision recognizes that for a disability to be permanent it need not necessarily be lifelong. The term "such" in the provision that "the insured shall at any time * * * on demand from the company, furnish due proof of the continuance of such disability," clearly refers to total and permanent disability. (Italics ours.) The quoted provision clearly modifies the previous provision of the policy, dealing with total and permanent disability. It evidences an intention of the parties that the language "totally and permanently disabled and will for lifetime be unable to perform," shall not be taken literally, and that a disability for a duration less than life may be treated, for the purpose of the policy, as permanent.
We sustain the view of the Court of Appeals that it was not error for the trial court to refuse to charge in the language of only one of the provisions of the policy.
We are of the opinion that substantial justice was done in both cases, and that no prejudicial error in the charges intervened.
Judgments affirmed.
WEYGANDT, C.J., ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.