Carver v. Metropolitan Life Ins. Co., 3683

• Decision Date: 06 September 1950
• Docket Number: No. 3683,3683
• Citation: 60 S.E.2d 865,191 Va. 265
• Court: Virginia Supreme Court
• Parties: DESSIE B. CARVER, ADM'X, ETC. v. METROPOLITAN LIFE INSURANCE CO. Record

Page 865

60 S.E.2d 865

191 Va. 265

DESSIE B. CARVER, ADM'X, ETC. v. METROPOLITAN LIFE INSURANCE CO.

Record No. 3683.

Supreme Court of Appeals of Virginia

September 6, 1950.

George S. Harnsberger, for the plaintiff in error.

Wayt B. Timberlake, Jr., and Richard W. Smith, for the defendant in error.

JUDGE: GREGORY

GREGORY, J., delivered the opinion of the court.

Perry A. Carver, now deceased, held a policy of life insurance with the Metropolitan Life Insurance Company for $5,000. In this policy and forming a part thereof was a supplementary agreement providing that in case of total and permanent disability of the insured the company would waive the payment of premiums and pay to him certain monthly benefits or income. This policy was delivered on September 7, 1927, and from that time until the trial of this case the premiums were paid.

This action was brought by Carver to recover the stipuated benefits or monthly payments which he claimed were due under the supplementary agreement. He contended that he had been totally and permanently disabled within the meaning of the disability provision and was entitled to the income payments. The insurance company denied liability.

The case was tried before a jury and at the conclusion of all of the evidence the court, upon motion of the insurance company, struck it out and this resulted in a verdict in favor of the defendant. Final judgment approving the verdict was entered on July 12, 1949, and this writ of error is being prosecuted in the name of Carver's personal representative because he departed this life about three months after the trial.

There is no controversy about the amount of the payments if the administratrix is entitled to recover, and there is no question about the notice given the insurance company. The sole issue now is whether there was sufficient evidence to go to the jury on Carver's disability in the light of the contract and our decisions in such cases. If there was then the case should have been submitted to the jury.

The supplementary agreement embracing the disability feature of the policy is as follows: '* * * hereby agrees that upon receipt by the company at its home office in the City of New York of due proof, on forms which will be furnished by the company, on request, that the insured has, while said policy and this supplementary contract are in full force and prior to the anniversary date of said policy nearest to the sixtieth birthday of the insured, become totally and permanently disabled, as the result of bodily injury or disease occurring and originating after the issuance of said policy, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, and that such disability has already continued uninterruptedly for a period of at least three months, it will, during the continuance of said disability, * * *.'

Carver was sixty years old at the time of the trial of this case. He was a man of limited education, and in 1914 began to work on his father's farm. Later he secured a job as a day-laborer with a firm of produce dealers -- that is, dealing in poultry, turkeys, chickens and the like. In 1918 he was engaged as a 'working manager' for a produce dealer. In 1932 he and his brother purchased the business of the Philadelphia Produce Company and thereafter ran it under the name of Carver Produce Company until December 31, 1945, when on account of labor troubles the business was closed and not reopened. Carver and his brother during the operation of the produce business had purchased four farms which were operated by the brother as livestock and turkey farms, the brother being the manager and director.

After the close of the produce business on December 31, 1945, Perry A. Carver helped on the farms in the raising of turkeys, his job being primarily the hauling of feed and feeding the turkeys, the food for the turkeys aggregating daily from 2,500 to 7,500 pounds. He engaged in this work until June 19, 1947, when he was stricken with his illness.

The evidence discloses, without contradiction, that a produce business, similar to that in which Carver was engaged, is a hazardous one which involves considerable mental and physical strain.

In February, 1947, and continuing until June 19, 1947, Carver had from time to time giddy spells, vertigo, and double vision, but he did not discontinue his work on account of that disability.

On June 19, 1947, in the morning when he awakened he could not get up because of severe dizziness, vertigo and double vision. He was treated by his family physician until June 30, 1947, and then was taken in an ambulance to the University Hospital in Baltimore, Maryland. While there he developed an acute facial paralysis on the left side of his face. His chin had to be tied up so he could eat, and a patch placed over his left eye because it would not close.

After June 19, 1947, Carver did no work of any kind. When he returned from the hospital the facial paralysis partially cleared but left the left side of his face numb and stiff. This condition continued. He was placed upon a strict diet, lost considerable weight, and was thereafter weak and tired easily. He was advised by his doctors not to perform any work that would involve any mental or physical strain whatever, and he testified that he felt incapable of performing or...