January 10, 1944.
"Good health," as employed in insurance contract, ordinarily means a reasonably good state of health, and does not mean perfect health.
The addition of adverb "reasonably," in instruction that if jury believe from preponderance of evidence that prior to time he suffered a heart attack insured was in reasonably good health, sufficiently defined measure of health, required by by-laws of defendant society relating to reinstatement of a delinquent member.
Even if instructions on measure of health required by by-laws of defendant society for reinstatement of delinquent member given at plaintiff's request were erroneous, error was cured by instructions granted defendant which supplemented, modified and clarified those granted plaintiff.
Instructions that jury should find insured disabled within meaning of life certificate providing permanent disability benefits if jury should find that on account of heart disease suffered following a heart attack insured had been unable to carry on his occupation and was unable to do any substantial amount of work by which he could gain a livelihood, and that complete helplessness was not required to establish that insured was "totally disabled," were proper.
In action to recover permanent disability benefits based on life certificate, instructions given at plaintiff's request that plaintiff is "permanently disabled" if there is no reasonable probability that he will ever recover or become well, or that he will be substantially better, were proper.
Evidence supported finding that plaintiff was in good health when he was reinstated as a member of defendant society after having become delinquent, and that he thereafter became permanently and totally disabled under disability provisions of by-laws of defendant society, so as to be entitled to disability benefits.
APPEAL from the circuit court of Tishomingo county, HON. THOS. H. JOHNSTON, Judge.
Ely B. Mitchell, of Corinth, for appellant.
One of the issues in the trial of the case in the court below was when the appellee, if ever, became totally and permanently disabled. According to his own statement, the statement of his doctor, and the statements of other witnesses, it was on the 20th day of February, 1941. According to the statement of the appellee given to Mr. John Trouy on April 10, 1941, and according to his statement giving the history of his trouble to Dr. M.H. McRae on March 27, 1941, when he went to the doctor for examination, his trouble had increased four months prior to the examination, which would place the date of the increase in his trouble as November 27, 1940, indicating that he had had this trouble for some length of time and that it had increased four months before the date of the examination. The strongest evidence on this point is a letter dated March 13, 1941, addressed to the Woodmen of the World Life Insurance Society, Omaha, Nebraska, in which the appellee is asking for blanks to fill out for disability, and makes this statement: "Dr. A.H. Montgomery wrote in about a month ago for disability blanks." He was asking for disability blanks on or about the 13th day of February, 1941, seven days before he had his heart attack from which he claims his total and permanent disability resulted. If he was totally and permanently disabled on February 13, 1941, when he asked for disability blanks, he did not remain in good health thirty days after the 18th day of January, 1941, when he attempted to reinstate his certificate of insurance by the payment of his December dues and warranted by said payment that he was in good health at that time and would remain in good health for thirty days thereafter.
The court erred in granting instruction No. 1 to the appellee, which is as follows: "The court instructs the jury for the plaintiff that if you believe from the preponderance of the evidence in this case that on the 20th day of February, 1941, plaintiff suffered a heart attack and that he has since been suffering with a severe heart disease and that prior to the time he suffered the heart attack he was in reasonably good health, and if you further believe from the preponderance of the evidence that since said time on account of said disease he has been unable to carry on his usual occupation and is unable to do any substantial amount of work by which he can gain a livelihood, and if you further believe from the preponderance of the evidence that there is no reasonable probability that he will ever recover from said disease or be able to carry on his usual occupation or do any substantial amount of work by which he can gain a livelihood then you will find for the plaintiff and the form of your verdict will be: `We, the Jury, find for the Plaintiff.'"
A charge should embody as near as possible the terms of the contract sued on. It should correctly state the law applicable to the facts of the case. This charge is a copy of one given many years ago in the case of Mutual Benefit Health Accident Association v. Mathis, 169 Miss. 187, 142 So. 494, and has been used by counsel for the appellee in his insurance cases since that time. This charge is entirely too broad. It makes the recovery entirely too easy under the terms of the certificate. The character of the employment and the terms of the contract control when the insured is totally and permanently physically disabled and will be permanently, continuously, and wholly prevented thereby for life from performing any work for compensation or profit, or from engaging in any occupation or employment of a gainful nature. The terms of this contract definitely state what is meant by total and permanent disability, and this court has construed such contracts according to their terms and according to the occupation of the insured time and time again.
The Supreme Court cannot rewrite automobile liability insurance contract by interpolating provision that insured's liability shall follow only as to strictly proximate cause of injury to third persons.
In construing insurance policies every word or phrase must be given meaning and effect if reasonably possible.
New York Life Ins. Co. v. Nessossis, 189 Miss. 414, 196 So. 766; Grand Lodge v. Hannington (Ala.), 157 So. 266; Sovereign Camp v. Anderson (Ark.), 202 S.W. 698; National Council v. Smiley (Fla.), 100 So. 153; Stark v. Sovereign Camp (Ky.), 225 S.W. 1063; Tapp v. Sovereign Camp (Neb.), 168 N.W. 191; Fowler v. Sovereign Camp, 183 N.W. 550.
Insurance policies are to be construed like any other written contract in which the intention of the parties must be sought in the instrument itself.
Mississippi Mut. Ins. Co. v. Ingram, 34 Miss. 215; American Life Accident Ins. Co. v. Nirdlinger, 113 Miss. 74, 73 So. 875; Continental Casualty Co. v. Hall, 118 Miss. 871, 80 So. 335; Locomotive Engineers' Mut. Life Accident Ins. Co. v. Meeks, 157 Miss. 97, 127 So. 699; Georgia Casualty Co. v. Cotton Mills Products Co., 159 Miss. 396, 132 So. 73; Berry v. Lamar Life Ins. Co., 165 Miss. 405, 142 So. 445; Brotherhood of Railroad Trainmen v. Bridges, 164 Miss. 356, 144 So. 554; Ferguson v. Provident Life Accident Ins. Co., 170 Miss. 504, 155 So. 168; Mississippi Benevolent Association v. Brooks, 184 Miss. 451, 185 So. 817; Hart v. North American Accident Ins. Co., 154 Miss. 400, 122 So. 471.
Whether or not the insured is totally and permanently disabled depends upon the terms of the insurance contract and the occupation of the insured.
The certificate, Constitution, laws and by-laws constituting the contract between the parties in this case provide that when a member is suspended for non-payment of dues, he may be reinstated within fifteen days from the date of his suspension by the payment of his delinquent dues, without any warranties, but after fifteen days, and within three months from the date of his suspension, he may again become a member by the payment of the delinquent installments, provided he is in good health at the time of such payment and remains in good health for thirty days thereafter. The appellee did not pay his December, 1940, dues until January 18, 1941, at which time, in order to reinstate his certificate, he warranted that he was in good health and would remain in good health for thirty days thereafter. Therefore, his warranty did not expire until February 19, 1941. That night he had his heart attack.
The payment of this delinquent installment warranted that the appellee was in good health and would remain in good health for thirty days after such attempt to again become a member of the society. Charge No. 1 would have the court believe that he had to be only in reasonably good health. There is a clear distinction between "good health" and "reasonably good health." This charge No. 1 fits neither the facts, the terms of the certificate, nor the law applicable to the case.
"Good health" within the fraternal benefit order's constitution and law authorizing insured's reinstatement if in such health means freedom from disease seriously affecting general soundness of his system, or materially increasing risk.
Sovereign Camp Woodmen of the World v. Derrick (Tex. Civ. App.), 64 S.W.2d 983.
The term "good health" when used in a policy of insurance means that the applicant has no grave impairment or serious disease and is free from any ailment which seriously affects the general soundness and healthfulness of the system.
Sovereign Camp Woodmen of the World v. Dament, 62 Pa. 1144, 1146.
"Good health" means apparent good health without any ostensible or known or felt symptoms of disease, and does not exclude the existence of latent unknown defects.
Fraternal insurance society's receipt of money in payment of delinquent dues while suspended member was in good health and his continued good health for thirty days thereafter held condition precedent to his reinstatement under the society's constitution and by-laws.
Smith v. Sovereign Camp W.O.W., 187 A. 290; Burklow v. Sovereign Camp W.O.W. (Ky.), 68 S.W.2d 40; Johnson v. Sovereign Camp W.O.W. (La.), 163 So. 180; VanDahl v. Sovereign Camp W.O.W., 130 Neb. 181, 264 N.W. 494; Sovereign Camp, W.O.W., v. Lambert (Ala.), 153 So. 627.
When for non-payment of dues as per contract a benefit certificate in a fraternal insurance society is no longer in force, it is for the parties to stipulate whether in any event the insurance shall ever again be put in force. If suspended subject to reinstatement, it is for them to stipulate the terms and conditions on which it shall again become effective. This is sound law everywhere recognized. Contracts stipulating that upon full compliance with the terms of reinstatement it shall be effective at the end of a stipulated period thereafter, and conditioned on good health at the end of such period, upheld as to such conditions.
Sovereign Camp v. Lambert (Ala.), 153 So. 628; Sovereign Camp W.O.W. v. Cox, 121 Ala. 59, 127 So. 847; Melvin v. Piedmont Mutual Life Ins. Co., 150 N.C. 398, 64 S.E. 180, 134 Am. St. Rep. 943; American National Ins. Co. v. Otis, 129 Ark. 219, 183 S.W. 183, L.R.A. 1916E, 875; Greenwaldt v. U.S. Health Accident Ins. Co. of Saginaw, Mich., 52 Disc. 353, 6 Couch Ency. Ins. Laws, Sec. 1376; American National Ins. Co. v. Gilmore (Tex. Civ. App.), 16 S.W. 17.
Where a person is insured as engaged in two employments, to recover he must be wholly disabled from the prosecution of business in both capacities. The fact that the insured is prevented from following his usual occupation does not render him totally disabled when he is capable of earning as much or more in some other employment.
Buffalo, etc., Relief Association v. Post, 122 Pa. 597, 2 L.R.A. 44; Metropolitan Life Ins. Co. v. Foster, 67 F.2d 264; Thigpen v. Jefferson Standard Life Ins. Co., 204 N.C. 551, 168 S.E. 845; 14 R.C.L. 1416.
See also Lobdill v. Laboring Men's Mutual Aid Association, 69 Minn. 14, 38 L.R.A. 537, 65 Am. St. Rep. 542; Wolcott v. United Life Accident Ins. Association, 8 N.Y. Supp. 263; Lyon v. Ry. Pass. Assur. Co., 46 Iowa 631; Turner v. Fidelity Casualty Co., 112 Mich. 425, 38 L.R.A. 529; Baltimore Ohio Employees' Relief Association v. Post, 15 A. 885, 9 Am. St. Rep. 147.
The term "total disability" is a relative term, depending in a degree upon the nature of the insured's employment and the facts and circumstances of the case.
Herold v. Aetna Life Ins. Co. of Hartford, Conn., 2 S.W. 797.
It is reversible error to give contradictory or conflicting instructions.
Herndon v. Henderson, 41 Miss. 584; Solomon v. City Compress Co., 69 Miss. 319, 12 So. 339; Illinois Cent. R. Co. v. McGowan, 92 Miss. 603, 46 So. 55; Columbus Greenville R. Co. v. Phillips, 160 Miss. 390, 133 So. 123; Herod v. Carroll County, 171 Miss. 217, 157 So. 533; Life Casualty Ins. Co. v. Walters, 180 Miss. 384, 177 So. 47; Jackson v. Leggett, 186 Miss. 123, 189 So. 180; Mississippi State Highway Department v. Hillman, 189 Miss. 850, 198 So. 565.
W.C. Sweat, of Corinth, for appellee.
The appellee was in good health on January 18, 1941, and remained in good health for thirty days thereafter. The appellee was both totally and permanently disabled.
Columbian Mut Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225; Equitable Life Assurance Society v. Serio, 155 Miss. 515, 124 So. 485; New York Life Ins. Co. v. Best, 157 Miss. 571, 128 So. 565; Reliance Life Ins. Co. v. Cassidy, 173 Miss. 840, 163 So. 508; Mutual Benefit Accident Ass'n. v. Mathis, 169 Miss. 187, 142 So. 494.
The jury was properly instructed as to the law of the case.
Clark v. Forest Lumber Co., 9 La. App. 239, 120 So. 88; Metropolitan Life Ins. Co. v. Noe, 161 Tenn. 335, 31 S.W.2d 689; Janney v. Scranton Life Ins. Co., 315 Pa. 200, 173 A. 819; Heald v. Aetna Life Ins. Co. of Hartford Conn. (Mo. App.) 90 S.W.2d 797; Ozark Mut. Life Ass'n of Mena, Ark., v. Winchester, 116 Okla. 116, 243 P. 735, 736; Federal Life Ins. Co. v. Lewis, 76 Okla. 142, 183 P. 975, 5 A.L.R. 1637; Continental Casualty Co. v. Wynne, 36 Okla. 325, 129 P. 16; Cody v. John Hancock Mutual Life Ins. Co., (W. Va.), 163 S.E. 4, 5; Davis v. New England Mutual Life Ins. Co. of Boston, Mass., 263 Ky. 308, 92 S.W.2d 822; New England Mutual Life Ins. Co. of Boston, Mass., v. Hurst (Md.), 199 A. 822; Gibson v. Equitable Life Assurance Society, 84 Utah 452, 36 P.2d 105; Mid-Continent Life Ins. Co. v. House, 156 Okla. 285, 10 P.2d 718; Barnes v. Fidelity Mutual Life Ass'n, 191 Pa. 618, 43 A. 341, 342, 45 L.R.A. 264; Goucher v. Northwestern Traveling Men's Ass'n, 20 F. 596, 598; Provident Sav. Life Assur. Soc. of New York v. Beyer (Ky.), 67 S.W. 827, 828; Hann v. National Union, 97 Mich. 513, 56 N.W. 834, 836, 37 Am. St. Rep. 365; McDermott v. Modern Woodmen of America, 97 Mo. App. 636, 71 S.W. 833, 837; Alabama Gold Life Ins. Co. v. Johnston, 80 Ala. 467, 475, 20 So. 125, 59 Am. Rep. 816; 4 Words Phrases, First Series, pp. 3122, 3123.
The instructions granted to the appellee and to the appellant when taken together announce the law as favorably to the appellant as he was entitled to have it announced.
Argued orally by Ely B. Mitchell, for appellant, and by W.C. Sweat, for appellee.
This appeal is from a jury verdict, and judgment pursuant thereto, for $500 in favor of appellee, representing permanent disability benefits based upon a certificate of membership of appellee in appellant Society.
Appellee failed to pay the premium due December 1st, 1940, and thereby became suspended as a member of the Society. Under the by-laws, made a part of the certificate, he had the right to again become a member by paying the delinquent installments within three months subsequent to January 15th, 1941, "provided he is in good health at the time of such payment and remains in good health for thirty days —" thereafter. Appellee paid his delinquent installments on January 18th, 1941. He claims to have had a sudden and unexpected serious heart attack on February 20th, 1941, rendering him permanently disabled within the provisions of his certificate.
Appellant contends that appellee was not in good health on January 18th, 1941, nor was he in such health for thirty days thereafter. And on this question he first urges that the lower court committed error in its definition of good health as set out in the instructions granted appellee, plaintiff below. These instructions told the jurors that if they believed from the preponderance of the evidence "that prior to the time he suffered a heart attack he was in reasonably good health," that this finding would comply with the foregoing quoted provision. It will be noted that the by-laws use the expression "good health." The question is whether the addition by the court in the instruction of the adverb "reasonably" sufficiently defined the measure of health required by the by-laws.
All of the cases, without exception, hold that the term "good health" in these policies does not mean perfect health. Grattan v. Metropolitan Life Ins. Co., 92 N.Y. 274, 44 Am. Rep. 372; Burr v. Policy Holders' Life Ins. Ass'n, 128 Cal.App. 563, 17 P.2d 1014; Alabama Gold Life Ins. Co. v. Johnston, 80 Ala. 467, 2 So. 125, 59 Am. Rep. 816; Atlantic B.R. Co. v. Douglas, 119 Ga. 658, 46 S.E. 867; Mid-Continent Life Ins. Co. v. House, 156 Okla. 285, 10 P.2d 718; Chambers v. Metropolitan Life Ins. Co., 235 Mo. App. 884, 138 S.W.2d 29; Texas Independence Life Ins. Co. v. Pickens (Tex. Civ. App.), 153 S.W.2d 884; Schuetzel v. Grand Aerie Fraternal Order of Eagles (Mo. App.), 164 S.W.2d 135, and many other cases which might be cited.
In the Alabama Gold Life Ins. Co. case, supra [ 80 Ala. 467, 2 So. 131, 59 Am. Rep. 816], the court said: "It cannot be supposed that one who, for the purpose of procuring insurance, alleges himself to be in good health, shall be understood as warranting himself to be in perfect and absolute health; for this is seldom, if ever, the fortune of any human being; and `we are all born,' as said by Lord Mansfield in Willie v. Poole, Park, Ins. 555, `with the seeds of mortality in us.'"
The expression does not imply physical perfection and freedom from all the ills to which flesh is heir. It is not used in a scientific or technical sense. It is used in its common and ordinary sense by people describing their own condition. It is comparative. The courts have not adopted any set language in defining the term. A review of the foregoing cases will illustrate that, but turning to the authorities nearest in point it was said in Kroon v. Travellers' Ins. Co., 290 Ill. App. 35, 7 N.E.2d 935, 937: "The expression, good health, as employed in insurance contracts, is ordinarily construed to mean a reasonably good state of health." Clover v. Modern Woodmen, 142 Ill. App. 276.
In Burr v. Policy Holders' Life Ins. Ass'n, supra [ 128 Cal.App. 563, 17 P.2d 1015], the court used this language: "A warranty that the insured is in good health is not broken unless the insured has an ailment of a character so well defined as appreciably to affect his health. Only an ordinary and reasonable degree of health is required and this question is generally to be determined by the trier of fact."
In Maine Benefit Ass'n v. Parks, 81 Me. 79, 16 A. 339, 340, 10 Am. St. Rep. 240, it was said: "The health of the body required to make the policy attach does not mean perfect and absolute health; for it may be supposed that this is seldom to be found among men . . . Nor can there be any other definition or rule as to this requirement of good health than that it should mean that which would ordinarily and reasonably be regarded as good health. Nor should we be helped by saying that this good health must exclude all disorders or infirmities which might possibly shorten life; for, as has been well said in an instructive English case, that may be said of every disorder or infirmity. . . . But it must obviously be very difficult to determine questions like these by any general rule. And it is usual practice of courts to leave these questions to the jury."
In 14 R.C.L., par. 247, p. 1069, it is stated that: "Only an ordinary and reasonable degree of health is required, and this question is generally to be determined by the jury."
While we think it would be more helpful to the jury to define good health as ordinary and reasonably good health, free from any grave or serious disease or ailment that seriously affects the general soundness and healthfulness of the applicant, yet we think the word "reasonably" necessarily excludes all such disease and ailment as set out in the forgoing suggested instruction, and that the jurors would so understand.
Appellant obtained an instruction on this question in the words of the by-laws. Appellee says this instruction cured the error, if any, in his instructions. The above holding makes it unnecessary for us to pass on this question. But appellant says that the instructions are contradictory and constitute reversible error. The instructions granted appellee supplement, modify and clarify, but do not conflict with and contradict, those granted appellant. Ellis v. Ellis, 160 Miss. 345, 134 So. 150.
Appellant next urges that the instructions granted appellee, plaintiff below, were erroneous in prescribing the standard for testing whether the appellee was totally disabled at the time of the trial in January, 1943. The by-laws of the Society defined the nature and extent of the disability in this language: " — that he has suffered bodily injury, through external violent and accidental means or by disease, and that he is and will be permanently, totally, continuously and wholly prevented thereby for life from pursuing any and all gainful occupations or performing any work for compensation of value —." Plaintiff's instructions told the jury that he was disabled if the jury should find from the preponderance of the evidence "that on the 20th day of February, 1941, plaintiff suffered a heart attack and that he has since been suffering with a severe heart disease and that prior to the time he suffered the heart attack he was in reasonably good health, and if you further believe from the preponderance of the evidence that since said time on account of said disease he has been unable to carry on his usual occupation and is unable to do any substantial amount of work by which he can gain a livelihood."
Another instruction was in these words: "The court further instructs the jury for the plaintiff that to be totally disabled does not require a condition of complete helplessness but if a person is unable to carry on his usual occupation and unable to do any considerable amount of work by which he can gain a livelihood then he is totally disabled." There were other similar instructions.
Without elaborating upon the question, we think these instructions properly prescribe the yardstick for the guidance of the jury in passing upon the existing physical condition of the plaintiff under the rules and facts of the following cases: Metropolitan Casualty Ins. Co. v. Cato, 113 Miss. 283, 74 So. 114; Columbian Mut. Life Ins. Co. v. Craft, 186 Miss. 234, 185 So. 225; Reliance Life Ins. Co. v. Cassity, 173 Miss. 840, 163 So. 508; Mutual Ben., Health Acc. Ass'n v. Mathis, 169 Miss. 187, 142 So. 494; Equitable Life Assur. Soc. v. Serio, 155 Miss. 515, 124 So. 485; New York Life Ins. Co. v. Bain, 169 Miss. 271, 152 So. 845; American Bankers' Ins. Co. v. White, 171 Miss. 677, 158 So. 346; Metropolitan Life Ins. Co. v. Lambert, 157 Miss. 759, 128 So. 750; Metropolitan Life Ins. Co. v. Evans, 183 Miss. 859, 184 So. 426; Volunteer State Life Ins. Co. v. Davis (Ala. App.), 14 So.2d 162, certiorari denied (Ala. Sup.), 14 So.2d 168; New York Life Ins. Co. v. Bird (Fla.), 12 So.2d 454.
Appellant further urges that the lower court erred in announcing the rule as to the future and permanent condition of the plaintiff as defined in the instructions granted him. One of the instructions told the jury, ". . . if you further believe from the preponderance of the evidence that there is no reasonable probability that he will ever recover from said disease or be able to carry on his usual occupation, or do any substantial amount of work by which he can gain a livelihood . . .," that the plaintiff is then permanently disabled.
By Instruction No. 4 granted the plaintiff, the jury was told: "The court instructs the jury for the plaintiff that in order for a person to be permanently disabled it is not necessary for his disability to be such that he has no hope of ever recovering, but if his disability is such that there is no reasonable probability that he will ever recover or become cured or that he will ever become substantially better, then his disability is permanent."
In another instruction the court told the jury that if it believed from the preponderance of the evidence that " — there is no reasonable probability that he will ever recover or become well or that he would be substantially better, . . ." then plaintiff is permanently disabled.
On the question of permanent disability we think these instructions properly announce the law under the cases above cited and also under New York Life Ins. Co. v. Best, 157 Miss. 571, 128 So. 565, and Equitable Life Assur. Soc. v. Serio, 155 Miss. 515, 124 So. 485.
It is also contended by appellant that the evidence in this case does not support the finding of the jury that appellant was in good health when he was re-instated as a member of the Society and that he was permanently and totally disabled under the disability provisions of the by-laws. We have carefully examined and considered the evidence and, without undertaking to set it out, we think it was ample to support the verdict of the jury on these questions of fact.
Appellant also assigns other errors, all of which we have considered. We find no reversible error, if error at all, in these assignments.