Sperber v. Connecticut Mut. Life Ins. Co., 12496
Citation | 140 F.2d 2 |
Decision Date | 10 April 1944 |
Docket Number | No. 12496,12497.,12496 |
Parties | SPERBER v. CONNECTICUT MUT. LIFE INS. CO. SAME v. NEW YORK LIFE INS. CO. |
Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
William H. Tombrink, of St. Louis, Mo. (H. A. Waltuch and Strubinger, Tudor & Tombrink, all of St. Louis, Mo., on the brief), for appellant.
James C. Jones, Jr., of St. Louis, Mo. (Orville Richardson and Jones, Hocker, Gladney & Grand, all of St. Louis, Mo., F. H. Pease, of New York City, and Warren M. Humes, of Hartford, Conn., on the brief), for appellees.
Before STONE, THOMAS, and JOHNSEN, Circuit Judges.
Writ of Certiorari Denied April 10, 1944. See 64 S.Ct. 939.
These are separate actions on disability provisions of two life insurance policies issued to appellant by the Connecticut Mutual Life Insurance Company and the New York Life Insurance Company, respectively. Each policy contained total and permanent disability clauses.1 The cases were, by agreement, consolidated for trial and submitted to the jury under a single charge by the court and upon three interrogatories. Treating the answers of the jury thereto as a special verdict, separate judgments were entered in favor of each defendant. Plaintiff brings these appeals which are presented upon a common record and briefs.
Appellant presents here several points as to admission of evidence, an attack upon the charge to the jury and an attack upon the submitted interrogatories. Since we think the case should be reversed and remanded for new trial because of error in the charge to the jury, we deem it unnecessary to determine and do not determine the other matters presented. No full statement of the fact situation is useful but only enough to make clear the error we think exists in the charge.
The broad issue at trial was whether or not appellant was totally and permanently disabled so as to be unable to engage in any occupation or perform any work for profit or remuneration because of the amputation of his left arm as the result of an automobile accident on July 29, 1933. Since any disability caused by loss of the arm was obviously permanent, the essential issue was as to whether the disability, thus caused, was total. This depended upon the effect of this loss of arm upon his carrying on the business of hair dressing, which was the only business in which he was trained. He was, at the time of the accident, the owner of a hair dressing shop which he managed and operated.
Appellant contended that he was a "hairdresser" — which term covered the entire field of that profession — and that, up to the loss of his arm, he actually performed the work of dressing hair, necessitating use of both hands but that, due to such loss, he had thereafter been entirely unable to follow such work. The contention of appellees was that, for several years before the time of the accident and thereafter, he had fourteen or fifteen persons in his employ and, as a result of this increase and expansion in his business, he had not devoted much time to actual hairdressing but had given practically all of his time to the managerial, executive and supervisory part of his business and that the loss of his arm had not substantially interfered with the carrying on of his business as before.
This is a Missouri contract. In the construction of the scope of "total" disability as used in insurance contracts, Missouri courts adhere to the so-called "liberal" rule. Harms v. Mutual Life Ins. Co. of N. Y., Mo.App., 127 S.W.2d 57, 60; Smith v. Metropolitan Life Ins. Co., Mo.App., 108 S.W.2d 995, 999, and see Heald v. Ætna Life Ins. Co. of Hartford, Conn., 340 Mo. 1143, 104 S.W.2d 379, 383. That rule is that the disability is total if it renders insured "unable substantially to perform the duties of his occupation; that is, unable to perform in the usual and customary way the substantial acts of his occupation." Stoner v. New York Life Ins. Co., Mo.App., 90 S.W.2d 784, 791.2
Having in mind this applicable rule of law and the above fact contentions of the parties, it is clear that the fact issue was whether appellant used his hands "to perform in the usual and customary way the substantial acts of his occupation" or whether the were so largely executive and managerial that any use of his hands in his occupation was relatively unsubstantial. Having this issue in mind, we examine the here involved portion of the charge to the jury.
In a recitation of the evidence, in his charge, the court said:
Out of the presence of the jury in excepting to the last sentence just quoted, counsel for appellant stated:
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