Metropolitan Casualty Ins. v. Cato

Sykes, J., delivered the opinion of the court. William E. Cato instituted suit against the Metropolitan Casualty Insurance Company of New York in the circuit court of Washington county to recover accident benefits for a certain stated period as provided in a policy of insurance issued by the appellant to ap-pellee. This insurance policy provides for the payment to insured of twenty-five dollars a week while insured is continuously and wholly disabled from performing any and every kind of duty pertaining to his occupation. Clause 3 of said policy provides for a payment of twelve dollars and fifty cents a week for a period, not exceeding fifty-two weeks if'the insured is disabled from performing some one or more important daily duty or duties pertaining to his occupation. During the life of this policy Mr. Cato accidentally fractured his right bip, from which injury he never entirely recovered The insurance company under this policy paid Mr. Cato the sum of two hundred dollars and paid his doctor’s bill of seventy-five dollars. The policy provides that the weekly indemnity shall be paid at the end of each eight weeks if requested by the insured. Mr. Cato requested that his indemnity be paid in this — 295 — manner. The insurance company, however, declined to pay him any further or other sum of money than the two hundred and seventy-five dollars. This suit is for the second, third, fourth, fifth, and sixth eight-week periods of disability, each period amounting to two hundred dollars indemnity for total disability, or a total amount of one thousand dollars with interest, said period expiring September 22, 1914. The defendant pleaded the general issue, and a special plea setting up the fact that in his application for insurance plaintiff warranted as follows: “ ‘I am sound and whole, mentally and physically, I am neither deaf, deformed, nor suffer any impairment of vision of either eye, nor have I ever been subject to fits, epilepsy, vertigo, somnambulism, or any chronic disease, except (no exceptions) ’ — when in truth and in fact the plaintiff, prior to the application for and the issuance of said policy, had a stroke of paralysis, and at divers times prior thereto had chronic kidney trouble and had been informed by physicians that he had Bright’s disease.” A demurrer was overruled to this special plea, whereupon issue was taken upon same. There was also a special plea of a false warranty relating to the income of plaintiff, upon which issue was joined. The testimony did not sustain either of these special pleas. The facts in the case necessary to he mentioned by us are as follows: In his application for insurance Mr. Cato stated that his occupation was a cotton planter, and that his duties were ‘ ‘ superintending only.” He also said that he was sound and well, mentally and physically, nor had he ever been subject to any chronic disease. This policy was issued to the appellee on January 13, 1913. Appellee fractured his hip on the 21st day of October, 1913. The testimony material to the issues in brief is as follows: The appellee testified that at the time of his injury he was a plantation manager employed to manage the place of McCutchen Bros., which had about eight hundred acres in cultivation, at — 296 — a salary of one thousand dollars a year and certain perquisites unnecessary to be noticed; that since his injury he has been unable to do anything and had to resign his position with his employers; that he has been able to write a little and ride around in a buggy a little since; that the principal reason he has not been able to perform any of the duties of a plantation manager is because he has been unable to ride horseback. He was confined to his house on account of the injury until some time in April, 1914, at which time he prevailed upon his daughter to have him put into a buggy and driven out to see some cotton planted on a two hundred-acre plantation which was rented by his daughters. He was not able to be out again for about a month. Some time in May, under the advice of his physician, he was driven around in a buggy by some of his family, and at a later period was able to drive himself. During the entire time, however, he was never able to be out every day, but in pretty weather he was sometimes able to be out once a week, and sometimes oftener. His hip pained him practically all of the time. He testified to the duties of a plantation manager or superintendent, and among other duties said it was necessary for him to keep the books of the plantation. Counsel for appellant asked him if he could not keep those books at the time of the trial, to which he replied that he could do a little of it. He was also asked if a part of his duties as Superintendent was not to direct the hands as to how to work, and if he could not at least direct those on the place of his daughters that he could see from the road or from the turn rows where he could go in his buggy, to which he replied in the affirmative. The testimony further showed that Mr. Cato was given by his daughters a part of the proceeds of the crop raised on the place rented by them, which generally amounted to about "five hundred dollars a year; that this was a gratuity on their part. On this place they had a negro foreman who before the accident — 297 — was under the control of the appellee. After the accident this foreman would come to the house and advise with Mr. Cato while he was confined therein as to the crop, and Mr. Cato would also direct and advise him as best he could when he was able to ride out in a buggy to look at the crop. The appellee was never able to be out in his buggy every day. On damp or bad days he suffered severely with his hip and was confined to the house. He was never able to stay on the plantation all day and actually see to the proper management of it. He was not able daily to keep the books or was never able daily to perform any of the substantial duties of a plantation superintendent or manager. The testimony further showed that some years prior to the taking out of the policy herein sued on plaintiff suffered from facial paralysis, which is a disease of the sciatic nerve and which was temporary. His physician also testified that at one time, about six or seven years before the policy was issued, he suffered with malaria poisoning and may have had a trace of albumen in his urine, but that these had passed away. Clauses 2 and 3 in the policy are as follows: “Clause 2. If such injuries shall not result as specified in clause 1, but, directly, solely, exclusively, and independently of all other causes, shall, within two weeks from the date of, the accident, continuously and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation, the company will pay the insured the weekly indemnity above specified for the entire period of such total disability. “Clause 3. If such injuries shall not result as specified in clause 1, but, directly, solely, exclusively, and independently of all other causes, shall, within two weeks from the date of the accident or immediately following total disablement, continuously disable and prevent the insured from performing some one or more important daily duty or duties pertaining to his occu — 298 — pation, the company will pay the insured one-half of the weekly indemnity above specified for the period of such partial disablement, not exceeding fifty-two weeks. ’ ’ It is also contended that under the policy the answers of appellee in his application for insurance are warranties. Conceding that they are for the purpose of this decision, there is no testimony whatever in the record of any breach of these warranties. There is no testimony that at the time of the taking out of this insurance policy the appellee was not sound and whole. Inhere is no testimony in the record that he was ever subject to any chronic disease. The mere fact that he may have suffered from facial paralysis or malaria would not avoid the policy. He was sound and well at the time the policy, was issued. The facial paralysis, malarial poisoning, and trace of albumen in his urine had disappeared years before. The testimony shows that they were all temporary ailments from which a complete recovery was had; such ailments do not constitute a state of ever having been subject to any chronic disease. Joyce on Insurance, section 1849; Cady v. Fidelity & Casualty Ins. Co., 134 Wis. 322, 113 N. W. 967, 17 L. R. A. (N. S.) 260. At the conclusion of all the testimony the court instructed the jury to return a verdict for the plaintiff for the total amount sued for. This amount was based upon a total disability during the period stated in the declaration. The appellant contends that Mr. Cato was not totally disabled, but only partially disabled, and his recovery, if any, would be governed by clause 3, above quoted. Clause 3 provides that, if the injuries “continuously disable and prevent the insured from performing some one or more important daily duty or duties,” etc., or, in other words, if the insured is able to perform some one or more important daily duty or duties, then his disability would only be partial. It is the contention — 299 — of appellant that clause 3 explains and modifies clause 2. He also contends that in the reported cases on casualty insurance in the different states none of the policies there in question contains a clause similar to clause 3 in this policy. It is contended that, if the ap-pellee was able at any time to do any work pertaining to the important duties of plantation manager, then his disability would be reduced from total to partial. As we understand his contention, if Mr. Cato could do any work whatever on any plantation hooks, say for one hour out of every two weeks, then his disability would he partial, or if he could be driven in his buggy to the plantation rented by his daughters and remain there for a short time one day out of one or two weeks, and while there give some instructions to the hands, then his disability will he reduced from total to partial. In 5 Elliott on Contracts, section 4398, the author, in discussing policies of this character, has the following to say: “The cases which have placed a construction upon the term ‘total disability’ might sometimes seem to he divided into two classes, viz., those which construe it liberally in favor of the insured, and those which construe it strictly against him. Any apparent conflict in the decisions may, however, he mostly reconciled in view of differences in the language of the policies, and of the different occupations under which the parties were insured. Of course, if the. insured is so injured that he cannot do anything, it is a case of total disability. But the decisions go much further, and it is generally held that, if the insured is so injured that he cannot perform such work as he was engaged in at the time, or similar or remunerative work, it is a case of total disability, even though he may be able to do some slight act. ” In the case of Wolcott v. United Life, etc., Co., 55 Hun, 98, 8 N. Y. Supp. 263, the court says: — 300 — “Total disability must, from the 'necessity of the case, he a relative matter, and must depend largely upon the occupation and employment in which the party insured is engaged.” “One who labors with his hands might be so disabled by a severe injury to one hand as not to be able to labor at all at his usual occupation, whereas a merchant or a professional man might by the same injury be only disabled from transacting some kinds of business pertaining to his occupation. . . . There are a few propositions applicable to the construction of the policy under consideration which, under the evidence, are decisive of this case. The first is that total disability does not mean absolute physical inability on the part of the insured to transact any kind of business pertaining to his occupation. It is sufficient if his injuries were of such a character that common care and prudence required him to desist from the transaction of any such business so long as it was reasonably necessary to effectuate a cure. This was a duty which he owed to the insurer as well as to himself. Young v. Travelers’ Ins. Co., 80 Me. 244 (13 Atl. 896). The second is that under the particular' terms of this policy, to wit, ‘from transacting any and every kind of business pertaining to the occupation above stated’ (merchant), inability to perform some kinds of business pertaining to that occupation would not constitute total disability within the meaning of the policy. . . . But, fourth, the mere fact that he might be able, with due regard to his health, to occasionally .perform some single and trivial act connected with some kind of business pertaining to his occupation as a merchant, would not render his disability partial instead of total, provided he was unahle substantially or to some material extent to transact any kind of business pertaining to such occupation.” Lobdill v. Laboring Men’s, etc., Ass’n, 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, 65 Am. St. Rep. 542. — 301 — The above quotation is pecularily apt to the case at bar, because, taken most strongly for the appellant, the appellee here was only able “to occasionally perform some single and trivial act connected with some kind of business pertaining to his occupation,” as superintendent of a plantation. He was never able to perform any one or more of the important daily duties pertaining to his occupation as a plantation manager. Being able to direct the hands, upon a plantation without the ability to see that these directions are properly followed amounts to nothing and could not be considered an important duty. The important part, the sine qua non, is to see that these directions are properly executed. Being able occasionally to work on plantation books is not being able to perform one of the important daily duties mentioned in clause 3, but is a mere incident of the employment. The testimony shows that in order to be able to transact the important duties of managing a plantation the manager must be able to ride, horseback and go all over the plantation. He must be with the hands from daylight until dark. Turner v. Fidelity, etc., Co., 112 Mich. 425, 70 N. W. 898, 38 L. R. A. 529, and note, 67 Am. St. Rep. 428; Keith v. Chicago, etc., Co., 82 Neb. 12, 116 N. W. 957, 23 L. R. A. (N. S.) 352, and note, 130 Am. St. Rep. 655. In the note to the latter case the rule is stated that: “Ability to do some act will not prevent recovery. Thus it is held that the ‘total disability’ contemplated by a benefit certificate does not mean a state of absolute helplessness, and the fact that assured walked to his physician’ office was held not to prevent recovery where he was entirely incapacitated for work or business.” Mutual Benefit Ass’n v. Nancarrow, 18 Colo. App. 274, 71 Pac. 423. So the fact that a farmer is able to direct his business, and do some of the work himself, will not prevent his recovering as for total disability if he is wholly disabled from doing all the substantial and material acts neces — 302 — sary to be done. Foglesong v. Modern Brotherhood, 121 Mo. App. 548, 97 S. W. 240; Thayer v. Standard Life, etc., Co., 68 N. H. 577, 41 Atl. 182. In the latter case the court has the following to say: “As long as one is in full possession of his mental faculties, he is capable of transacting some parts of Ms business, whatever it may be, although he is incapable of physical action. If the words 'wholly disable him from transacting any and every kind of business pertaining to the occupation under which he is insured’ were to be construed literally, the defendants would be liable in no case unless, by the accident, the insured should lose his life or his reason. ... It is certain that neither party intended such a result.” See, also, the case of Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, and note, 21 Ann. Cas. 1029; Brotherhood of Locomotive Firemen & Engineers v. Aday, 97 Ark. 425, 134 S. W. 928, 34 L. R. A. (N. S.) 126. The correct rule, and the rule announced by the great weight of' authority in this country, is well stated in 1 Corpus Juris, p. 464, as follows: “But when the insured is prevented by his injury from doing all the substantial acts required of him in his business, he is within such a provision of the policy, notwithstanding the fact, that he occasionally is able to perform some single act connected with some kind of business pertaining to his occupation.” Practically all of the authorities bearing upon this matter are cited in the able briefs of counsel for appellant and appellee, and we will not further quote from them. In conclusion we will say that the plaintiff was never able to perform any one or more important daily duty as superintendent of a plantation. It therefore follows that the peremptory instruction was correct, and the case is affirmed. Affirmed.