Forman v. Prudential Insurance Co. of America

Wiest, J. This is an action to recover monthly payments for disability under supplemental provisions in two life insurance policies issued by defendant to plaintiff in August, 1926. The policies provided that “If the insured shall become totally and permanently disabled, either physically or mentally from any cause whatsoever, to such an extent that he is rendered wholly, continuously and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value,” the company would pay him $100 a month under each policy. In 1928, plaintiff had thrombo-phlebitis of his .right thigh, leg and foot and defendant paid him $200 per month until April, 1942, when it was stopped and this action was brought to recover the monthly payments from that time to the date of trial in September, 1943. Trial by jury was had, with verdict and judgment for defendant. At the close of the proofs plaintiff did not move for a directed verdict in his favor but, after judgment, moved for judgment non obstante veredicto or a new trial. The motion was denied and plaintiff reviews by appeal. The motion for judgment non obstante veredicto after verdict and judgment thereon for defendant *147 was improper. Court Rule No. 37, § 8 (1933), Wulff v. Bossier, 199 Mich. 70; Yerkes v. Antrim Circuit Judge, 200 Mich. 443; 3 Comp. Laws 1929, § 14531 as amended by Act No. 44, Pub. Acts 1939 (Comp. Laws Supp. 1940, § 14531, Stat. Ann. 1944 Cum. Supp. § 27.1461). Denial of the motion for new trial may be considered and brings questions on rulings at the trial and whether the verdict was against the great weight of the evidence. Plaintiff’s disability was physical and the court was in error in permitting counsel for defendant, on cross-examination of plaintiff, and over objection thereto, to inquire into his finances. Counsel, in urging its admissibility, stated it was very important and the court ruled it had a bearing upon the issues. It was wholly beside the mark even though it brought out his mental acumen in managing his finances. A man, bedfast by reason of physical disability, may manage his finances. In the brief for defendant it is said: “If the appellant had any thought that the testimony would create an inference that appellant ‘had independent wealth and hence, would not be harmed by the loss of disability benefits,’ he was at liberty to request the court to instruct the jury not to base a verdict upon any such consideration. No such request was made.” This begs the question. Plaintiff had a right to stand upon the objection and now press error on the ruling of the court. Plaintiff testified that he could not do any continuous work requiring him to use his right foot in standing, and in this he was supported by the testimony of two physicians. The one physician called by defendant agreed that plaintiff has chronic thrombo-phlebitis of the right leg but thought it a *148 mild type, not disabling him from carrying on work as a tailor or some other work not requiring him to stand on his foot much of the time. Plaintiff testified that he tried to so carry on as a tailor but could not do so because the occupation required bim to stand on his feet. He tried other employment but for the same reason could not continue. He could perform some sedentary work but is barred therefrom by lack of education. He was born in Russia; came to this country at the age of 20 years; had very little education; was a tailor by occupation, and the record does not disclosé any sedentary occupation open to him or which he is qualified to fill. The record negatives the fact that he is a malingerer. Plaintiff’s'application for the insurance stated his occupation as “Making plain and fur garments. All-around ladies’ tailor,” and the contract of insurance made plaintiff’s application a part thereof. The burden of proof was upon plaintiff to establish continuing and physical disability at the time of the trial and the long-time payments by defendant in recognition of plaintiff’s disability did not shift the burden. The record has been read and we find the verdict against the great weight of the evidence. We may not set aside the verdict and. direct judgment to be entered in favor of plaintiff, for we have no more power in the premises than had the circuit judge, as before mentioned. Defendant insists upon strict application of the letter of the policy in its favor and claims thereunder that plaintiff had no total permanent and continuing disability. Defendant, under a like policy, was advised to the contrary in Rezendes v. Pruden tial Insurance Company of America, 285 Mass. 505 (189 N. E. 826), from which we quote the following: *149 “The policy in referring to disability of the insured repeatedly employs the absolute words ‘total’ and ‘permanent’ and their derivatives and synonyms but from a reading of the policy as a. whole it is manifest that it was not intended that those words should be taken in a literal sense or given an absolute effect. So far as concerns totality of disability' complete physical or mental incapacity is not necessary ; the policy in terms makes the obligation of the insurer rest upon a lesser disability than ‘ total. ’ He is entitled to the stated monthly income if he is ‘totally disabled * * * to such an extent that he was rendered wholly and continuously unable’ to do any remunerative work. Something less than absolute permanency of disability is contemplated. * * * “Where the language permits two rational interpretations, that more favorable to the interests of the insured is to be taken. . The insurer chose the words to express the contract of indemnity and which ever of two warranted interpretations of language best effectuates the main manifested design of the parties is to be favored. * * * ‘ ‘ The disability of an insured who still retains the power to do some work may be within the policy definition if he is ‘wholly and continuously unable’ to do any work of such character that he can receive therefor any financial compensation. If the quoted words be taken.in their absolutely literal sense no obligation of the insurer to pay disability benefits would arise if in any period of 90 consecutive days the insured' for some space of time, however short, had the physical or mental ability, regardless of the harmful consequences t.o himself, to do some work, however little, for which he might be paid any financial compensation, however small. “We are of the opinion that the language of the policy defining disability in terms of the insured’s capacity to do any work for financial compensation *150 should not be given such a narrow and literal construction as to ignore serious or fatal consequences which would be likely to result if he undertook to perform such work. As words are understood by reasonably intelligent men, one is wholly unable to work if he can do no work without seriously endangering his health or risking his life.” Boss v. Travelers Ins. Co., 296 Mass. 18 (4 N. E. [2d] 468), is to like effect. See, also, Adamaitis v. Metropolitan Life Ins. Co., 295 Mass. 215 (3 N. E. [2d] 833). In Duhaime v. Prudential Insurance Company of America, 86 N. H. 307 (167 Atl. 269), it was said: “In determining when an insured is ‘permanently disabled * * * or incapacitated * * * to such an extent that he # # * is * * # wholly and permanently unable to engage in any occupation or * * * work for * * * compensation of financial value, ’ regard must be had tó more than his physical condition. It is self-evident that an injury which might reduce an illiterate laboring man to a condition whereby he could only earn his living by begging, might not in any wise impair the earning power of a business or professional man. Regard must be had to the insured, to his age, education, experience, training and capabilities. The insurer cannot avoid the payment of benefits because theoretically the insured could educate himself for some non-manual employment.” See, also, Janney v. Scranton Life Ins. Co., 315 Pa. 200 (173 Atl. 819). In Atlantic Life Ins. Co. v. Worley, 161 Va. 951, 960 (172 S. E. 168), the court stated the sensible rule— “Total and permanent disability, as used in insurance policies, is a relative expression. It does not mean absolute incapacity, mental and physical. The *151 term must be construed rationally and practically and the trial court should have instructed the jury on the meaning of total and permanent disability in the light of the almost unanimous judicial interpretation of those words. The jury should have been told that the disability contemplated by the policy did not mean a state of absolute helplessness, but meant the inability to do substantially all of the material acts necessary to the prosecution of any occupation for remuneration or profit in substantially the customary and usual manner in which such occupation is prosecuted. This would have been an equitable and reasonable interpretation of the term. Contracts of insurance should receive a reasonable construction so as to effectuate the purposes for which they are made. Legal effect should be given to the language used, and the object to be accomplished by the contract should be considered in interpreting it. Such a rule would not require the literal interpretation which would render it necessary that the insured be in a condition of complete helplessness, mentally and physically, and totally unable to do anything at all.” In Aetna Life Ins. Co. v. Davis, 187 Ark. 398 (60 S. W. [2d] 912), the court stated: “It clearly appears from the evidence that the insured was never at any time since April, 1927, able to do all the substantial acts necessary in the conduct of any vocation in which he was fitted to engage in the usual and customary way without peril to his health; he was therefore totally and permanently disabled within the meaning of the policy.” In that case the insured endeavored to perform available work but could not continue. At the trial one physician was asked if he felt the man was totally disabled when he had recently worked at a job for $2 a day, and he answered, “ ‘You can work *152 a horse when he is sick, but it wouldn’t be to the best interest of the horse.’ ” In Prudential Insurance Company of America v. South, 179 Ga. 653 (177 S. E. 499, 98 A. L. R. 781.), the court stated: “It (the insurer) received a valuable consideration for which it agreed to confer a benefit, and it is presumed that a substantial benefit was intended. If a literal construction is applied in this case, the insured would be required to show a condition of practical helplessness in order to recover. Few people ever arrive absolutely at that condition from a nonfatal accident. The term ‘work’ is itself ambiguous, having numerous definitions, including (1) mental or physical effort directéd to an end; (2) toil or labor; and (3) employment or occupation. * * * Under this policy, any reasonable person would have expected substantial protection, and would never have thought of the disability as one which must incapacitate him to earn the smallest sum in any possible manner. * * * “ ‘Under defendant’s theory, the plaintiff might embark in the peanut trade or follow the business of selling shoestrings or lead pencils, or follow some similar calling, in which instances under the rule invoked'there would be no disability within the meaning of the policy. In our opinion, such was not within the contemplation of the parties. In order to carry out the intent of the parties, it is our duty to disregard the broad language used, which would have the effect to defeat the purpose of the contract and render it a nullity.’ ” In Forman v. New York Life Ins. Co., 267 Mich. 426, we held: “Phlebitis is a stubborn disease. The inflammation may be reduced but exertion of the leg or even general exercise may cause a recurrence of an acute painful condition. Thrombosis involves the danger *153 of the clot breaking into particles which, carried in the blood stream to the brain or heart, may cause death. * * * ‘ ‘ The medical testimony is that plaintiff conld not pursue any suggested vocation with a reasonable degree of regularity or length of time and without hazard of relapse. The doctors opined that plaintiff is not able to engage' in any occupation for gain except under circumstances so favorable and fortuitous as to be without the range of probabilities. They also testified that plaintiff’s disability is probably permanent. The showing of total permanent disability was ample. ’ ’ The judgment is reversed and a new trial granted, with costs to plaintiff. Butzel and Sharpe, JJ., concurred with Wiest, J.