Opinion
No. 31072.
February 19, 1934.
1. INSURANCE.
Under life policy providing for "total and permanent disability" benefits, utter inability and entire helplessness of insured is not required as basis for recovery, which is based not on what insured does, but his condition, and whether activities will seriously endanger his health.
2. INSURANCE.
Whether insured, a plantation manager, after suffering second stroke of paralysis and becoming afflicted with high blood pressure, was totally and permanently disabled so as to be entitled to disability benefits under life insurance policy, held for jury.
APPEAL from Circuit Court of Humphreys County.
Watkins Eager, of Jackson, for appellant.
The appellee, Joseph L. Bain, was not totally and permanently disabled within the provisions of this policy, or as contemplated by the parties.
Before the appellee, Bain, can recover, it must be proven by a preponderance of the evidence that he is both totally and permanently disabled, and the proof of the one without the other will not suffice.
Shipp v. Metropolitan Life Ins. Co., 111 So. 453, 146 Miss. 18; Metropolitan Casualty Ins. Co. v. Cato, 74 So. 114, 113 Miss. 286.
The record in this case shows conclusively, and it is in fact admitted by all of the witnesses for the appellee, that Mr. Bain was able to ride horseback over the entire plantation as often as was necessary in the proper supervision of the plantation. It shows conclusively, and it is admitted, that the appellee was thoroughly able to direct the hands on the plantation, to give orders and directions and to go back and see that these orders were carried out as given.
Railroad Trainmen v. Nelson, 147 So. 661; Metropolitan Life Ins. Co. v. Blue, 133 So. 707; Coad v. Travelers' Ins. Co., 61 Neb. 563, 85 N.W. 558; Shirts v. Phoenix Acc. Sick Benefit Asso., 135 Mich. 439, 97 N.W. 966; Fidelity Casualty Co. v. Getzendanner, 93 Tex. 487, 53 S.W. 838, 55 S.W. 179; Hurley v. Bankers' Life Co., 199 N.W. 343, 37 A.L.R. 146; Lyon v. Railway Pass. Assur. Co., 46 Iowa 631; Lobdell v. Laboring Men's Mutual Aid Asso., 38 L.R.A. 537; Federal Life Ins. Co. v. Hurst, 160 S.E. 533.
This case is controlled by the holding of this court in the case of Curlee v. Mutual Life Ins. Co., 144 So. 686.
H.F. Jones, of Belzoni, for appellee.
Holdings of nearly all courts are equitable and reasonable in the interpretation of total and permanent disability and it is not that literal interpretation which would require a complete condition of helplessness, nor such an entire physical or mental inability in respect to the pursuit of an occupation or employment that the insured can do absolutely nothing, and particularly in the construction the more liberal in its application to a case where the disability arises out of a disease the nature of which is such that common care and prudence require the insured to rest, to the extent that he shall refrain from the ordinary exactions of any fixed employment, else the disease will progress and cause death.
Equitable Life Ins. Co. v. Sereo, 124 So. 485, 155 Miss. 515; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750, 752; Lamar Life Ins. Co. v. Catlett, 139 So. 455.
What man, about his ordinary affairs of any business, would be regarded as worth while in any occupation whatever, who had to lie on his bed every few hours. This Bain must do.
We sincerely entertain the belief that a reversal of this case would certainly reverse the cases of Equitable Life Assurance Society v. Sereo, 155 Miss. 515, 124 So. 485; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Mutual Benefit Health Accident Assn. v. Mathis, 142 So. 494; Lamar Life Ins. Co. v. Catlett, 139 So. 455; Heralds of Liberty v. Jones, 142 Miss. 743, 107 So. 519; Provident Life Accident Ins. Co. v. Anding, 144 Miss. 277, 109 So. 670.
Argued orally by W.H. Watkins, Jr., for appellant, and by H.F. Jones, for appellee.
The appellant issued a policy in favor of the appellee which, among other things, provided for benefit in case of total and permanent disability. The provision involved reads as follows:
"Whenever the company receives due proof, before default in the payment of premium, that the Insured, before the anniversary of the policy on which the Insured's age at nearest birthday is sixty years and subsequent to the delivery hereof, 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, and that such disability has existed for not less than sixty days . . . then. . . . One year after anniversary of the policy next succeeding the receipt of such proof, the company will pay the Insured a sum equal to one-tenth of the face of the policy and a like sum on each anniversary thereafter during the lifetime and continued disability of the Insured."
In 1929, the appellee had a slight stroke of paralysis, but made no claim under his policy, and continued to operate his business as a plantation manager. On May 25, 1931, he suffered a second stroke and was afflicted with high blood pressure. Thereafter the appellee contended that he was totally and permanently disabled within the terms of the policy, and brought this suit for the sum of two hundred dollars, that being the amount then due, if his contention was sustained.
We do not deem it necessary to set out the statement of facts at length, as the principles of law are well settled in this state. See Equitable Life Assur. Soc. v. Serio, 155 Miss. 515, 124 So. 485; New York Life Ins. Co. v. Best, 157 Miss. 571, 128 So. 565; Metropolitan Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Mutual Ben. Health Accident Ass'n v. Mathis (Miss.), 142 So. 494; Metropolitan Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; Shipp v. Metropolitan Ins. Co., 146 Miss. 18, 111 So. 453.
We have examined the evidence, and we think the appellee's testimony, if believe to be true, and as the jury found by their verdict, was sufficient to sustain a recovery.
It is true that the appellee did visit his plantation, spending some time there each morning, attempting to look over the management thereof, but his physician testified that this was dangerous to his health, jeopardized his life, and was against his advice. The provisions of the policy do not require utter inability and entire helplessness for recovery. The cases above mentioned sufficiently define the meaning of such provisions. It is not what a person does that entitles him to recovery, but it is the condition in which he is, and whether the activities will seriously endanger his health or life. The medical testimony in this case shows that, while moderate exercise is beneficial, excessive or tiresome exercise is dangerous.
We think the facts in this case were for the jury, and we are unable to find any reversible error therein. The judgment of the court below will be affirmed.
Affirmed.