Crowe v. Equitable Life Assur. Soc. of United States

• Decision Date: 26 March 1934
• Docket Number: 32515
• Citation: 179 La. 444,154 So. 52
• Court: Louisiana Supreme Court
• Parties: CROWE v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES

154 So. 52

179 La. 444

CROWE v. EQUITABLE LIFE ASSUR. SOC. OF UNITED STATES

No. 32515

Supreme Court of Louisiana

March 26, 1934

Appeal from Fourteenth Judicial District Court, Parish of Calcasieu Thomas F. Porter, Judge.

Suit by Lewis E. Crowe against the Equitable Life Assurance Society of the United States. From a judgment in favor of plaintiff defendant appeals, and plaintiff answers the appeal.

Affirmed.

Rosen Kammer, Wolff & Farrar, of New Orleans, and Pujo, Bell & Hardin, of Lake Charles, for appellant.

C. S. Girod, Jr., and C. V. Pattison, both of Lake Charles, for appellee.

Rogers Justice. ST. PAUL, J., absent.

OPINION

Rogers, Justice.

Plaintiff sued for double indemnity and attorney fees on a group insurance policy for $ 1,020.80, payable in twenty monthly installments of $ 51.04 each, in the event the insured "became totally and permanently disabled by bodily injury or disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value." The policy further provided that payment of the monthly disability-installments will be made "upon receipt of the proof of such disability before the expiration of one year from the date of its commencement."

Defendant denied liability on the ground that plaintiff's right of recovery is barred by his failure to furnish proof of disability within one year from the time the disability commenced, and on the further ground that plaintiff is not totally and permanently disabled from engaging in any occupation or performing any work for compensation of financial value.

The court below gave plaintiff judgment for the face of the policy payable according to its terms. From this judgment defendant has appealed and plaintiff has answered the appeal, praying that the judgment be increased by awarding him the statutory penalties and interest.

Plaintiff was employed as a manual laborer by the Newport Company, of DeQuincy, La. While so employed on January 29, 1931, a trestle turned over and fell on him, injuring his back, right hip, and chest. Plaintiff consulted and was treated by local physicians, until June, 1931, when he was examined by a New Orleans physician, who advised plaintiff that he did not consider his injuries total or permanent and suggested to plaintiff that his condition would improve if he returned to work. Plaintiff returned to DeQuincy and attempted to work, but was unable to do so. Shortly thereafter he learned that his disability would be permanent. This was in July, 1931. On April 25, 1932, plaintiff advised defendant in writing that he was totally and permanently disabled and claimed full compensation therefor under the terms of the policy. Defendant was furnished with numerous physicians' reports showing the extent of plaintiff's injuries, but defendant refused to pay plaintiff any of the benefits stipulated in the policy, claiming that plaintiff was not permanently and totally disabled.

Defendant's contention, apparently advanced for the first time as one of the defenses to this suit, is, that plaintiff's action is barred because he failed to give notice of his injury as required by his policy. Defendant's theory appears to be that the time within which to give such notice began to run from the date the accident occurred. But this is not the agreement between the parties. The policy provides that: "In the event any employee * * * becomes totally and permanently disabled by bodily injury or disease, * * * upon receipt of due proof of such disability before the expiration of one year from the date of its commencement , the Society will * * * pay equal Monthly Disability-installments. * * *" (Writer's italics.)

Under the express terms of the insurance contract no liability attaches to defendant unless plaintiff, as the result of bodily injury or disease, becomes totally and permanently disabled. And the year within which notice must be given runs from the date of the commencement of the permanent and total disability, not from the date the accident actually occurs. It would be a wholly unreasonable construction to place upon these conditions of the policy to hold that plaintiff was obliged to give notice of an accident which he could not know would produce permanent and total disability, and for which he had no reason to believe any liability would ever attach under the contract.

The record discloses that plaintiff's injury consists of a fracture of the fourth lumbar vertebra. As a result of the injury, a wedge shaped deformity has developed in plaintiff's spinal column, which is displaced laterally. Because of pressure on nerves of the spinal cord, plaintiff suffers considerable pain, and has acquired a decided limp as a result of his suffering.

As late as June, 1931, the physician who examined plaintiff in New Orleans, did not consider his disability as permanent or total. He advised plaintiff to return to work, which plaintiff attempted unsuccessfully to do. The uncontradicted testimony of plaintiff is, that he only learned his disability was permanent in July, 1931, shortly after he had attempted to return to work. Plaintiff's testimony is corroborated by the medical testimony in the record which indicates that the "wedging" of a vertebra is a gradual process and does not ordinarily develop until about five or six months after an injury occurs.

From all of which we have reached the conclusion that the defendant insurance company was fully notified and furnished with ample proof of the accident and plaintiff's total and permanent disability within less than one year from the date of the commencement of such disability.

Defendant further resists liability on the ground the measure provided by the insurance contract to determine plaintiff's disability or incapacity is his inability to engage in any occupation or to perform any work for compensation of financial value. And defendant argues that even if plaintiff is unable to perform hard manual labor, he is capable of doing any kind of light work that would not place an undue strain upon his injured back. Defendant refers to a number of authorities as supporting its position.

The record discloses that plaintiff is a white man fifty years old, with little schooling, who has earned his living wholly by manual labor. As the result of his...