Colovos v. Home Life Ins. Co. of New York
| Decision Date | 04 January 1934 |
| Docket Number | 5297 |
| Citation | 28 P.2d 607,83 Utah 401 |
| Court | Utah Supreme Court |
| Parties | COLOVOS v. HOME LIFE INS. CO. OF NEW YORK |
Appeal from District Court, Third District, Salt Lake County; David W. Moffat, Judge.
Action by Gust Colovos against the Home Life Insurance Company of New York. From a judgment for plaintiff, defendant appeals.
AFFIRMED, WITH INSTRUCTIONS.
Cheney Jensen & Marr and C. W. Wilkins, all of Salt Lake City, for appellant.
H. G Metos, of Salt Lake City, for respondent.
MOFFAT, J., being disqualified, did not participate.
This case comes before this court on appeal from the Third district court. The action was brought by the plaintiff, Gust Colovos, against the Home Life Insurance Company of New York to recover total and permanent disability benefits alleged to have accrued monthly under a contract of insurance, and for a premium paid after the alleged disability.
Appellant in the trial below admitted the issuance of the policy, that it was in full force and effect, but denied any total or permanent disability. The case was tried before the court sitting with a jury, and a verdict rendered for the plaintiff therein. From the verdict and judgment thus rendered, the appellant has filed its appeal. It set up nineteen assignments of error, which may be classified in groups, raising the following propositions to be considered by this court: (1) The court's failure to direct a verdict. (2) Insufficiency of the evidence to show total permanent disability. (3) That the verdict and judgment are void because of uncertainty. (4) That the recovery should have been limited to payments accruing to and including November, 1930. The first two propositions are covered by appellant's assignments of error Nos. 10, 12, 14, 15, 16, and 17.
No. 10 refers to the requested instruction of the appellant for a verdict of no cause of action. No. 12 refers to the appellant's requested instruction No. 9, which instructs the jury to find for the defendant in the court below, in case they find the plaintiff's legs and left arm are unaffected by the injury, and that he has a limited use of his right arm. No. 14 refers to the plaintiff's motion for a nonsuit. No. 15 refers to plaintiff's motion for a directed verdict. No. 16 refers to the refusal of the court to grant the motion for a new trial and errors at law occurring at the trial. and No. 17 to the insufficiency of the evidence to justify the verdict. These assignments are grouped together for the purpose of this discussion, and will dispose of the first two issues raised.
Referring first to the testimony before the jury in this case, it is undisputed that the disability was entirely confined to the insured's right arm, particularly to the elbow and wrist, and was due to arthritis. As to the extent of this disability, there is some difference of opinion. The plaintiff testified that in September, 1930, he became afflicted with the disease, which started with a pain in his hand, when he was working on his farm at Magna; that he was unable to do a number of the things on his farm necessary in the harvesting of his crops; that for forty-five days he could not sleep; that after this pain stopped in the daytime but continued at night; that he visited Dr. La Barge for about a month for treatment; that he visited Dr. Kahn, who had his tonsils and teeth removed; that now when he works his arm bothers him; that at the time of trial it pained him; plaintiff is able to bend his arm at the elbow approximately ninety degrees, can move the right wrist laterally, and can touch each finger on the right hand to the thumb on the right hand; that the plaintiff cannot grip; that his hand pains when it is squeezed; that he can hold a five-pound weight out at five degrees with the arm stretched, gripped above; that the right wrist at the time of the trial was larger than the left wrist.
Dr. Kahn testified that he examined the plaintiff; that he was suffering from arthritis, and complained of a great deal of pain in the elbow and wrist, which were swollen and enlarged; that there is no way the medical profession can determine whether or not a patient is in pain; that he had plaintiff's tonsils and teeth removed; that there is an elevation on the right wrist of considerable thickness caused by the inflammation; that the plaintiff is handicapped in the use of his right arm; that there is from 50 to 60 per cent normal motion in the wrist; that the pain in the wrist will possibly subside, but that the bony condition of the elbow and wrist will be permanent. In the witness' opinion the arm will never be normal; that the plaintiff will never be able to do the same work that he was formerly able to do before his illness; that the doctor would not consider that the plaintiff was able to do any work with his right arm, or that he could not do any farm or ranch work with his right arm; that the plaintiff could not life a bag of potatoes with his right arm, and it is probable that plaintiff's condition will not get worse; that most of the witness' work is emergency surgery and general practice; that he is not a specialist on bone injuries.
The balance of plaintiff's testimony related largely to his occupation, and it appears from this testimony that the plaintiff had worked at a mill in Magna years before, but of recent years had farmed and peddled, that in farming it is necessary to plow and dig, and that in peddling it is necessary to life packages, sacks, and bags from 50 to 120 pounds. There is testimony from others testifying that it is impossible to do general farm work or to peddle without the use of both arms and hands. Plaintiff's wife testified that plaintiff cannot work, and that he complains about his hand hurting him.
The defendant's testimony is confined to that of Dr. Martin C. Lindem and Dr. A. L. Huether, relating to the disability in the plaintiff's arm. Dr. Lindem testified that he specialized in such diseases as arthritis, and examined the plaintiff ten days before trial, and had X-ray pictures taken; that he found a distortion of the joint in the right elbow, and, to a less extent, in the right wrist; that there is a distortion of the bone entering the movable part of the joint, and that the bone is larger and has a rougher surface that was not normal and interferes with the motion to a certain extent; that, as a general rule, such interferences cause pain in the productive stage, but usually arrive at a fixed condition where it is not necessarily painful, that the plaintiff's trouble is in a healed or fixed condition; that there is nothing to indicate to the doctor that the plaintiff's condition would become worse; that the plaintiff is not restricted at the elbow joint to any great extent; that the plaintiff's arm is not now painful with passive motion; that the plaintiff lacks about twenty degrees of complete extension, and about five degrees of complete flexion in the elbow; that the normal extension is one hundred twenty degrees; that the plaintiff has 60 to 65 per cent disability, industrially speaking, considering 100 per cent as the loss by severance of an arm at the middle of the upper arm. The doctor further testified he was not sure the condition of the wrist had reached a fixed condition. Dr. Huether's testimony, with the addition of taking the X-rays, was practically the same as that of Dr. Lindem.
The plaintiff's testimony tends to bear out the theory that the disability of the right arm, as testified to, prevents him from continuing in the occupation of farming and peddling, or engaging in other like work for compensation or profit. While the defendant's testimony tends to show that the plaintiff is only suffering from 60 to 65 per cent disability in the right arm, industrially speaking, that is, figuring 100 per cent disability of the right arm as the loss by severance of an arm at the middle of the upper arm, it is the contention of the defendant that, since the plaintiff is not disabled to the extent that he is unable to do any work similar in nature to that that he has formerly done, he is not entitled to recover under the policy because of total permanent disability. At this point it is necessary to refer to the contract of insurance, particularly to the second paragraph of paragraph 2 of said policy, which reads as follows:
"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 and performing any work for compensation or profit, and under this contract disability shall be presumed to be permanent after the insured has been continuously and totally disabled for not less than three months and during all of that period prevented from engaging in any occupation and performing any work for compensation or profit."
In this matter the court is called upon to construe the contract particularly the scope and meaning of the following lines set out in the paragraph above quoted: "* * * Prevented from engaging in any occupation and performing any work for compensation or profit." It is the opinion of this court that the term used, "engaging in any occupation and performing any work for compensation or profit," has a well-defined meaning. It means ability to follow any recognized occupation, and to do substantially all the acts that are necessarily and usually performed by one who follows that occupation. It could not be said that a man could engage in an occupation if he were able to do only one or two of the acts customarily performed by one engaged in such an occupation. Furthermore, there is an element of continuity in...
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