Boughton v. Mutual Life Ins. Co. of New York

• Decision Date: 02 December 1935
• Docket Number: 33234
• Citation: 165 So. 140,183 La. 908
• Court: Louisiana Supreme Court
• Parties: BOUGHTON v. MUTUAL LIFE INS. CO. OF NEW YORK

165 So. 140

183 La. 908

BOUGHTON v. MUTUAL LIFE INS. CO. OF NEW YORK

No. 33234

Supreme Court of Louisiana

December 2, 1935

Rehearing Denied January 6, 1936

Appeal from Fifth Judicial District Court, Parish of Richland; C. J Ellis, Jr., Judge.

Suit by Louis O. Boughton against the Mutual Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals.

Affirmed.

Frederick L. Allen, of New York City, Shotwell & Brown, of Monroe, and Montgomery & Montgomery, of New Orleans, for appellant.

Warren Hunt, of Rayville, for appellee.

HIGGINS Justice. O'NIELL, C. J. ODOM, J., dissents and hands down reasons.

OPINION

HIGGINS, Justice.

This is a suit by an assured against an insurance company, to recover certain disability installments alleged to be due under the policy, on the ground that he is permanently and totally disabled.

Defendant denied liability.

There was judgment in favor of the plaintiff, as prayed for, with the exception that the penalties which are provided for in Act No. 310 of 1910 were rejected.

Defendant appealed and plaintiff did not answer the appeal.

Plaintiff owned about 700 acres of land, which consisted of woodland, pasture, and farm lands. About 450 acres were under cultivation with cotton and corn. He also raised hogs on about 40 acres and had grazing lands for sheep and cattle, which he bought and sold. He milked cows and had a small vegetable garden in close proximity to his home for his own use. There were about thirteen negro families, who were tenants on the farm on a share basis, but they were rigidly supervised by the plaintiff. He showed them how to plant and hoe the cotton and corn and tend the crops. He assisted in herding the cattle and in having them dipped. He actively directed the ginning and baling of cotton, the baling of hay, the repairing of fences, bought all the supplies for the farm, marketed its products, handled all of the financial matters, and was generally very active in overseeing, superintending, and operating the farm, being a healthy, robust man. His duties on the farm necessitated his riding a horse, driving an automobile, operating a tractor, and doing considerable manual work and walking. His family, consisting of a wife and two children, are living on the farm with him. He has been a farmer all of his life and knows no other trade or calling.

While in the above described position, when he was forty-one years of age, on March 2, 1929, he made application for a $ 10,000 life insurance policy with the defendant, which was issued, carrying the disability and total indemnity clauses.

On October 17, 1930, plaintiff was stricken with appendicitis and three days later was removed to a sanitarium in Monroe, La., where he was operated on the following day for a badly ruptured appendix. The appendix was removed and "the abdominal cavity drained from the front and back," on account of the extensive infection, the main wound of about five inches being left open for better drainage. It was also necessary to divert the bowel movement through his side on account of a fecal fistula. He was confined to a hospital for forty-one days and to his bed at home for two more weeks.

About three or four months after the operation, a large protruding ventral post-operative hernia resulted, which has gradually become larger and more pronounced, and he complains of nervousness, headaches, nausea, exhaustion, and gall bladder trouble.

The plaintiff was paid disability installments for more than a year before the defendant stopped payments, claiming that he was not permanently and totally disabled within the meaning of the provisions of the policy.

The pertinent part of the policy reads, as follows:

"And if the insured is totally and presumably permanently disabled before the age of 60, will pay to insured $ 100.00 monthly during such disability, and increasing after five and ten years continuous disability, besides waiving premium payments on conditions set forth in Section 3.

"Section 3. Total Disability. Disability shall be considered total when there is any impairment of mind or body which continually renders it impossible for the insured to follow a gainful occupation.

"Permanent disability. Total disability shall during its continuance, be presumed to be permanent; (A) If such disability is the result of conditions which render it reasonably certain that such diability will continue during the remaining life time of the insured; or (B) If such disability has existed continuously for ninety days." (Italics ours.)

The medical testimony is in accord to the effect that the plaintiff is incapable of performing strenuous and laborious work, and cannot perform all of the services he rendered in connection with the operation of the farm or plantation, prior to the time he was stricken with appendicitis.

The testimony is in conflict as to whether or not the plaintiff is capable of performing the duties of a superintendent and overseer of the farm, which requires the driving of an automobile, riding horse back, walking, and hoeing in the fields for the purpose of demonstrating to the tenant farmers how their work should be done, and supervising the dipping of cattle.

Dr. C. H. Mosley, who operated on the plaintiff, Dr. F. C. Sheppard, who attended the plaintiff and who was also employed by the defendant to examine applicants for insurance, and Dr. Thomas Sayre, who treated plaintiff, testified that while the plaintiff's mental capacity was not impaired, he was physically disabled from driving an automobile for an appreciable distance and length of time, particularly over farm or mud roads, from mounting, riding, and dismounting a horse, from walking for any considerable distance, from milking cows, and using a hoe. It was their opinion that any physical exertion or strain would tend to enlarge the hernia, which was already very large, by causing addtional portions of the intestines to enter the sac, resulting in grave danger of strangulation, which might result fatally.

Dr. Edward A. Ficklen, Dr. Chas. Eshleman, Dr. Ernest Irion, and Dr. C. P. Gray, expert witnesses for the defendant, all agreed that the plaintiff is permanently and totally disabled from performing laborious and strenuous work. They state, however, that he is capable of managing and supervising his farm, because certain portions of it are accessible through turn rows, i. e., unimproved or mud roads, over which an automobile might be driven; that with the aid of a belt or abdominal support he could mount, ride, and dismount a horse, walk, supervise the dipping of cattle, and demonstrate how the plants should be properly hoed.

Dr. Chas. Eshleman said the hernia was as big as a grape fruit. Dr. Irwin described it as follows:

"The hernial opening is about four and a half inches from the lateral to the medial side, and about three inches from that; that is from the lateral, it is obliquely situated about four the upper and outer edge of the lower and inside edge and about three to three and a half inches to the transverse diameter."

Dr. Mosley, who performed the operation, said that the entire incision of about five inches was left open for drainage and that, as there was an extensive infection in the abdominal cavity, portions of the muscles had sluffed off, causing a very weak condition of the abdominal wall and that only the skin had healed, leaving the intestine protected only by the peritoneum and the outer skin.

Dr. Charles Eshleman also gave the following testimony:

"Q. Suppose Mr. Boughton, instead of being a plantor as you have described him, is a dirt farmer, who plows on occasions, and a part of those duties would be to drive a tractor, and part of those duties would be to ride a horse over a plantation in his effort to supervise what is being done; whose duties are to cut and bale hay, load hay, store it away in a barn, actually engaging in the cutting, pitching and lifting of the hay; in the operation of a baler; also the operation of a thresher, threshing oats, stacking the straw, getting up early in the morning at daylight, attending to the usual chores, milking cows, carrying water, attending to a vegetable garden necessitating a hand plow; and hoeing, digging fence holes and building fences, walking long distances to a field and getting cows, bringing them up to the barn and milking them, carrying off the milk, separating it, as well as making arrangements with bankers at distant places to finance his crops, necessitating the driving of a car; if his duties consisted of all these things, if that is his occupation doing the things I have just named in this hypothetical question, do you consider him incapacitated wholly to do substantially all those things, either wholly or to any extent? A. I would consider that many of those duties come in the class of heavy manual labor, and therefore if he attempted to do any of those things, or all of those things, he would not be able to carry on. * * *

"Q. Would you advise him not to ride a horse? A. I would not think it would be helpful for him to ride a horse long distances, or to * * *

"Q. But he could ride to some extent without injury? A. Yes.

" Q. Could he without injury, carry the normal milk pail to the barn? A. I would not advise him to do it, because carrying or lifting things increases abdominal tension, and that is what you don't want to do.

"Q. Could he, without injury to himself build a fence? A. I would not advise him to do that kind of work." (Italics ours.)

The plaintiff testified that since his affliction he has been unable to do his work, as he formerly performed it; that he attempted to ride a horse, but his abdominal belt pinched and hurt him; that he has driven a car occasionally...