Cato v. Aetna Life Ins. Co.
| Decision Date | 23 June 1927 |
| Docket Number | 5671. |
| Citation | 138 S.E. 787,164 Ga. 392 |
| Parties | CATO v. AETNA LIFE INS. CO. et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
To entitle the administrator of the insured to recover under the following provisions of a group policy, taken out by an employer for the benefit of his employee, to wit: "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," the insured must have become totally disabled to pursue any occupation for wages or profits before reaching the age of 60, and such disability must have existed for a period of 6 months.
Total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he depends for a living.
[Ed Note.-For other definitions, see Words and Phrases, Second Series, Totally Disabled.]
When the insured is incapacitated from performing any substantial part of his ordinary duties, a case of total disability is presented, although he is still able to perform some parts of his work. Total disability is inability to do substantially all of the material acts necessary to the transaction of the insured's occupation, in substantially his customary and usual manner.
"Total disability" does not mean absolute physical inability to work at one's occupation, or to pursue some occupation for wages or gain; but it exists if the injury or disease of the insured is such that common care and prudence require him to desist, and he does in fact desist, from transacting his business. In such circumstances, total disability exists.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Total Disability.]
If the insured, who was afflicted with tuberculosis, had quit pursuing his occupation of a weaver on account of his disease, then, under the evidence of the medical experts that it was unwise for him to work in the condition of his health it would have been for the jury to say whether ordinary care required him to abandon his occupation, and whether total disability existed, under the principle of law that matters of this kind are ordinarily questions of fact for the jury. But as the insured did not abandon his calling on account of his disease, this principle is not applicable.
Where the insured worked for his employer at his ordinary occupation from the date of the insurance to July 1, 1921 when the cotton mills of the employer were shut down for lack of orders, and where the evidence fails to disclose that during such period the insured lost any time or wages, and where the evidence does not show that the deceased had abandoned his occupation after July 1, 1921, and until September 14, 1921, on account of his disease, when on the last-named date he was employed at his occupation of a weaver at another cotton mill, where he worked more than 92 per cent. of his time, and earned more than 42 per cent. of the wages usually earned by a competent, experienced weaver in full health, until January 14, 1922, when his certificates of insurance were properly canceled, a verdict for the insurer was demanded, although it appeared that the insured had symptoms of tuberculosis two or three years prior to July 1, 1921, and that thereafter he was in an advanced stage of that disease, in consequence of which, in the opinion of medical experts, it was unwise for the insured to work, and his earning capacity was decreased; and the court did not err in directing a verdict for the defendant.
Error from Superior Court, Troup County; C. E. Roop, Judge.
Suit by J. C. Cato, as administrator of the estate of C.J. Cato, deceased, against the AEtna Life Insurance Company and another. To review a judgment on a directed verdict for defendants, plaintiff brings error. Affirmed.
Employer's group policy held to require that insured, to recover, must have become totally disabled to work for wages before 60, for period of at least 6 months. Civ.Code 1910, § 2475.
J. C. Cato, as administrator of the estate of C.J. Cato, deceased, brought suit against the AEtna Life Insurance Company and the New England Southern Mills, upon two certificates of insurance issued by the former company under a group policy of insurance issued to the latter company, the certificates of insurance in turn being issued by the latter company to C.J. Cato, one of its employees. The basis of the suit is that during the life of said certificates the deceased became totally disabled, within the meaning of the policy, due to tuberculosis, and that under the terms of the policy his administrator is entitled to recover the full face value of the certificates, on account of the total disability of the deceased. The policy under which the certificates were issued contains the following clause:
"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 6 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."
Said certificates were issued under and subject to the terms and conditions of the policy. The statement of the employer to the employees, notifying them that the former has taken out this policy, contains this provision:
The policy was issued on April 10, 1920, to the Hogansville Mills, the predecessor of the New England Southern Mills, and covered all of the employees of the mill employed at that time. At that time C.J. Cato was an employee of the mill, and a certificate for $800 was issued to him, and on April 19, 1921, another certificate for $100 was issued to him.
At the trial of the case the following facts appeared from the evidence and an agreed statement of facts:
The insured worked at the Hogansville branch of the New England Southern Mills until July 1, 1921, when the mill was shut down on account of lack of work. The mill resumed operations on December 15, 1921. In the agreed statement it appears that the insured did not return to work at the Hogansville mill in December, 1921, or at any time thereafter. One of his sons testified that the insured applied to this mill for work when it resumed operations, and that the overseer of the mill told the witness that he was sorry that he could not give the insured work, as he did not have a job the insured was able to keep up. On January 14, 1922, the employer canceled the two certificates issued to the insured, on account of his discontinuance in its employment. Some time in September, 1921, the insured was employed by the Unity Cotton Mills as a weaver, and he worked continuously as a weaver in said mills from September 17, 1921, to March 25, 1922. His name appeared on the weekly pay roll of that mill for September 24, 1921, and on each weekly pay roll thereafter up to and including March 25, 1922. After the latter date he did not work for a period of 3 weeks. He worked for said mill for the week ending April 22, 1922, and each succeeding week until May 20, 1922.
From September 24, 1921, to January 14, 1922, the mill was operated 651 hours. The deceased worked every hour during this period, except 48. He earned during this period $101.50. He worked at piecework. He was a competent weaver, of long experience, and the average weaver working at piecework earned 40 cents an hour. From January 14, 1922, to May 20, 1922, inclusive, the insured worked for the Unity Cotton Mills as a weaver at piecework. The mill was operated 830 hours during that period. The insured worked 555 hours. He earned during this period $76.20. From May 20, 1922, to July 22, 1922, he did not work. On the latter date he began work with the Elm City Cotton Mills, and worked until November 4, 1922, with the exception of 4 weeks. He died on April 9, 1923, at the age of 53 years and 3 months. After July 1, 1922, his health was bad. He was suffering with tuberculosis. He showed symptoms of this disease for 2 or 3 years prior to that date. The plaintiff, who was his son, testified that he was unable to work at his trade of a weaver; that after the mill at Hogansville shut down he stayed 6 or 7 weeks at that place; that witness moved him from Hogansville to La Grange, where he did no work for a while, on account of his condition; that when he came to La Grange he was weak and in a run-down condition, had a bad cough, was suffering from tuberculosis, and that this condition continued until his death. On cross-examination, witness testified he did not know how many weeks his father worked at Unity Mills during the period beginning September 17, 1921; did not work regularly, because he was not able to work. He worked at the cloth room at the Elm City mill.
Dr Harvey, for the plaintiff, testified that he waited upon the deceased in 1920 or 1921; that in 1921 he was suffering with tuberculosis; that...
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