New York Life Ins. Co. v. Thompson
| Docket Number | 22083. |
| Decision Date | 29 July 1932 |
| Citation | 165 S.E. 847,45 Ga.App. 638 |
| Parties | NEW YORK LIFE INS. CO. v. THOMPSON. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 28, 1932.
Syllabus by the Court.
Loss of leg near hip by schoolboy, 17, held "total disability," within accident policy (Civ. Code 1910, § 2475).
Loss of leg by schoolboy, 17, resulting from contraction of disease of an unknown nature, necessitating amputation, constituted "total disability," within accident policy providing that disability should be deemed total whenever the insured becomes totally disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit, since "total disability," which is the antithesis of "partial disability," exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he must depend for a living, or is unable to do substantially all the material acts necessary to the transaction of the insured's business or occupation, in substantially his usual manner, and does not mean absolute physical inability to work at one's occupation, or to pursue any occupation for wages or gain.
Paragraph of petition alleging insured petitioner was wholly disabled held not demurrable as stating conclusion.
Paragraph couched in language of insurance contract, alleged that since he lost his leg, petitioner had been wholly and permanently disabled, and, though 24 years of age, was, and had been continuously, since losing his leg, prevented by his condition from engaging in any occupation whatsoever for remuneration or profit.
Insurer's total disability payments constituted admission that insured was then totally disabled, but not that insured was totally disabled when he filed subsequent suit.
Judgment for accrued total disability installments constituted adjudication that, when suit was filed, insured was totally disabled, but not that he was totally disabled when he filed subsequent suit.
Plea setting forth petition in former suit alleging insured plaintiff was totally disabled, and judgment for sum sued for, showed adjudication that plaintiff was then totally disabled.
The court did not err in overruling the demurrers to the petition in this case.
Error from City Court of Reidsville; M. Price, Judge.
Suit by H. L. Thompson against the New York Life Insurance Company. Defendant's demurrer to the petition was overruled, and defendant brings error.
Affirmed.
Lawton & Cunningham, of Savannah, for plaintiff in error.
B. D Dubberly and J. T. Grice, both of Glennville, for defendant in error.
Thompson brought suit against the insurance company on an accident insurance policy, in which the company obligated itself to pay to him a certain sum per month should he become totally disabled as provided therein. He alleged that he contracted a disease, the nature of which was unknown to him, necessitating amputation of his left leg near his hip, and that he is, and has been continuously, since losing his leg, prevented by such condition from engaging in any occupation whatsoever for remuneration or profit. The petition shows that at the time he lost his leg he was about 17 years of age and was a schoolboy. The defendant demurred generally, on the grounds that no cause of action was set forth in this petition, and that the mere loss of a leg by a boy about 18 years old does not amount to total and permanent disability within the terms of the policy. The court overruled this demurrer, and the defendant excepted.
The policy provides that "disability shall be deemed to be total whenever the insured becomes wholly disabled by bodily injury or disease, so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit." The question for decision is whether the loss of a leg at or near the hip by a boy of 17 years, under the circumstances set forth above, amounts to total disability within the terms of the policy quoted.
1. Policies of insurance will be liberally construed in favor of the object to be accomplished, and provisions therein will be strictly construed against the insurer. Johnson v. Mutual Life Ins. Co., 154 Ga. 653, 115 S.E. 14; Penn. Mutual Life Ins. Co. v. Milton, 160 Ga. 168, 127 S.E. 140, 40 A.L.R. 1382. The contract should be so construed as to carry out the true intention of the parties. Civ. Code 1910, § 2475. The language of the contract should be construed in its entirety, and should receive a reasonable construction, and not be extended beyond what is fairly within its terms. Where the language is unambiguous and but one reasonable construction of the contract is possible, the court must expound it as made. Yancy v. Ætna Life Ins. Co., 108 Ga. 349, 33 S.E. 979; Wheeler v. Fidelity, etc., Co., 129 Ga. 237, 58 S.E. 709.
Total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he must depend for a living. Total disability is the antithesis of partial disability. One is the opposite of the other. Cato v. Ætna Life Ins. Co., 164 Ga. 392 (2), 398, 138 S.E. 787, 790. The contract of insurance in the Cato Case provided: "If total disability of any employee entitled to insurance, under the schedule of insurance contained in this policy, begins before the age of 60, and if due proof be furnished the company after such disability has existed for a period of six months, and if such disability presumably will during lifetime prevent such employee from pursuing any occupation for wages or profit, such employee shall be deemed to be totally and permanently disabled within the meaning of this policy." So it was held in Marchant v. New York Life Ins. Co., 42 Ga.App. 11 (2), 155 S.E. 221, that "In a suit to recover benefits for a total disability as provided in an insurance policy which defined a 'total disability' as one whereby the insured is 'prevented *** from engaging in any occupation whatsoever for remuneration or profit,' evidence that the insured had sustained a bodily injury by reason of which he was forced to desist from substantially all of the usual and customary duties of the occupation being pursued by him at the issuance of the policy would have authorized a finding of total disability within the meaning of the contract." There is no substantial difference between the disability clause in the contract of insurance involved in the Cato Case and that in the case at bar; and the disability clause in the policy involved in the Marchant Case and the one contained in the policy in this case are identical.
The courts of most jurisdictions hold that "total disability" is inability to do substantially all the material acts necessary to the transaction of the insured's business or occupation, in substantially his customary and usual manner, and that total disability does not mean absolute physical inability to work at one's occupation, or to pursue any occupation for wages or gain. Cato v. Ætna Life Ins. Co., supra; note, 24 A.L.R. 203; 14 R.C.L. § 491. In our opinion, under the two decisions referred to above, this is the rule prevailing in this state....
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