Aetna Life Ins. Co., Hartford, Conn., v. Staggs

• Decision Date: 09 October 1934
• Parties: Aetna Life Ins. Co. of Hartford, Conn., v. Staggs.
• Court: United States State Supreme Court — District of Kentucky

255 Ky. 638

Aetna Life Ins. Co. of Hartford, Conn., v. Staggs.

Court of Appeals of Kentucky.

Decided October 9, 1934.

1. Insurance. — Miner disabled by hernia resulting from operation for ruptured appendix held entitled to recover under group policy providing coverage for total and permanent disability if employee was disabled for six months, although initial disability had occurred only six weeks before expiration of policy, since six months' provision in disability clause did not relate to life of policy.

2. Insurance. — Physicians' evidence that insured miner was totally disabled held sufficient to show inability to perform duties of miner substantially as before disability occurred, and to permit recovery of benefits under total disability clause of group policy, although insured was able to perform light work.

3. Insurance. — Words "totally disabled," in group policy, mean inability to do and perform in reasonable and practicable way all material acts in pursuit of occupation or employment of insured, but do not mean absolute helplessness or entire physical disability.

4. Trial. — Refusal to instruct that insured miner had duty to minimize effects of hernia by submitting to operation to recover under group policy held not error, where there was no evidence that insured had been advised to have operation or that he had refused, and three physicians testified that hernia was incurable by operation.

Appeal from Johnson Circuit Court.

EDWARD L. ALLEN for appellant.

O.W. CAIN for appellee.

OPINION OF THE COURT BY JUDGE RATLIFF.

Affirming.

In September, 1923, the appellant issued to the North East Coal Company a group policy of life insurance which also carried a disability clause, insuring the lives of its employees. Each employee of the coal company after having worked continuously for the company for a period of six months was originally issued a $500 certificate of insurance, and, after each year of continuous service, the employee was issued an additional certificate of $100. The amount of insurance carried for the benefit of the appellee, Staggs, at the time of his alleged disability which occurred November 20, 1931, aggregated the sum of $1,300. On October 20, 1931, a rider was attached to the group policy according to the terms thereof providing that the policy was to and did automatically expire January 1, 1932, without privilege of further renewal.

It appears that Staggs continued in the service of the company from the date of the issuance of the group policy in 1923, until November 22, 1931, at which time he was operated on for ruptured appendix, resulting in a hernia, which, according to the contention of appellee, permanently and totally disabled him from pursuing his occupation as a coal miner. That clause of the policy under which appellee sues, reads:

"If total disability of any employee entitled to insurance under the schedule of insurance contained in this policy begin before age sixty, 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."

After Staggs was discharged from the hospital, he continued to work in the mines as a switch flagman, in which work he continued each day the mine ran, up to the date of the trial of this case, March 20, 1933. About January 1, 1933, Staggs filed this suit in the Johnson circuit court to recover of appellant under the terms of his insurance policy, alleging that as a result of the operation and hernia he was permanently and totally disabled and asked to recover the sum of $1,300. A jury trial was had which resulted in a verdict and judgment thereon for the sum sued for. From that judgment appellant prosecutes this appeal.

Appellant insists that the cause should be reversed on ground (a) that the court erred in overruling its motion for peremptory instructions, (b) the court erred in instructions given, and (c) the court erred in refusing to give certain instruction offered by appellant.

We will discuss these topics in the order named.

(a) It is insisted that the court should have sustained appellant's motion for peremptory instructions because there was no evidence to show that Staggs was totally disabled, and his insurance policy had expired within less than six months after his disability occurred, and for authority in support of this argument, cites the cases of AEtna Life Ins. Co. v. McCullagh, 195 Ky. 136, 241 S.W. 836; Columbia Casualty Co. v. McHargue, 246 Ky. 93, 54 S.W. (2d) 617, and AEtna Life Ins. Co. v. Gullett, 253 Ky. 544, 69 S.W. (2d) 1068, 1071.

The first two above-styled cases deal with evidence relating to the nature of the disability, which question we will later refer to herein. The last case, AEtna Life Insurance Co. v. Gullett, relates to the issue respecting the expiration of the policy within six months after the disability attached.

It is conceded that Staggs' disability attached approximately six weeks before the expiration of his policy. The six months' provision in the disability clause relates to the duration of the disability and not to the life of the policy, and once disability attaches within the lifetime of the policy and such disability continue for six months, it is immaterial that the policy may have expired before the expiration of the initial six months' disability. This question was in issue and discussed in AEtna Life Ins. Co. of Hartford v. Gullett, supra, wherein this court said:

"To defeat his right of recovery by a cancellation, it must be made before the liability to him attached."

And citing Thompson v. Pac. Mills et al., 141 S.C. 303, 139 S.E. 619, 55 A.L.R. 1237, and other cases. However, there is language used in the opinion in the Gullett Case, supra, which indicates that the insured was not entitled to recover under the disability clause unless his disability continued six months before the cancellation of the policy. But this language is...