Culver v. The Prudential Insurance Co. of America

• Decision Date: 17 April 1935
• Citation: 36 Del. 582,179 A. 400
• Court: Delaware Superior Court
• Parties: ALBERT E. CULVER v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation of the State of New Jersey; ALBERT E. CULVER v. METROPOLITAN LIFE INSURANCE COMPANY, a corporation of the State of New York

179 A. 400

36 Del. 582

ALBERT E. CULVER v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation of the State of New Jersey; ALBERT E. CULVER v. METROPOLITAN LIFE INSURANCE COMPANY, a corporation of the State of New York

Superior Court of Delaware, Sussex County

April 17, 1935

Superior Court for Sussex County, No. 30, June Term, 1934 and No. 31, February Term, 1934.

James M. Tunnell for plaintiff.

Frank M. Jones for Metropolitan Life Insurance Company.

Paul Leahy and David F. Anderson (of Ward and Gray) for The Prudential Insurance Company of America.

LAYTON C. J., and HARRINGTON, J., sitting.

OPINION

LAYTON, C. J.

Norman Hoffecker, an optometrist called by the plaintiff, was asked on direct examination,

"What could you say as to the third method suggested, that of operation (on the eye)?"

Mr. Leahy, the attorney for one of the defendants, objected to the question on the ground that the witness was not a surgeon, and, therefore, was not qualified to answer the question.

LAYTON, C. J.:

Q. Did you ever do any surgery on the eye?

A. No, sir; but I have the textbooks relative to it.

Mr. Leahy: Mere textbook knowledge is not sufficient. The witness is not qualified to state what a number of surgeons have written about the subject. The question is, does he know? Is he an expert?

LAYTON C. J.:

I think the testimony of the witness ought to be confined to the field in which he has at least some practical experience. The objection is sustained.

LAYTON, C. J., charging the jury:

These actions are brought by the plaintiff, Albert E. Culver, against The Prudential Insurance Company of America and The Metropolitan Life Insurance Company, to recover from each of said companies disability benefits alleged to be due and owing the plaintiff under the terms of the respective policies which are in evidence, as well as premiums paid the companies, together with interest.

While the actions are separate ones, they are tried together for the sake of convenience, and separate verdicts will, of course, be rendered.

The plaintiff claims that he was injured in an automobile accident on February 2, 1932, as a result of which his eye sight became impaired; that what is known as double vision, partly in the upper field and also in the lower field of vision, has resulted; that there has been a progressive diminution of vision; that the use of prisms, the blocking of one eye, or other mechanical means has given no relief, and that he has not been advised by his several physicians and oculists to resort to an operation. He contends that his eyesight has become permanently impaired so far as the co-ordination of his two eyes are concerned. He contends that the impairment of sight is permanent, and by reason thereof he is unable to engage in any gainful occupation.

He also claims that he suffered some injury to the brain, which, while it has caused the impairment of sight, has also caused partial paralysis of the left arm, dizziness, inability to co-ordinate in the use of his lower limbs, and that as a result of his injuries generally he was rendered unable permanently to engage in any gainful occupation.

His contentions are, therefore:

1. That as a result of impairment of vision he was rendered permanently incapable of engaging in a gainful occupation.

2. By reason of his injuries generally, including impairment of sight, he was rendered permanently incapable of engaging in a gainful occupation.

The defendants do not deny that the plaintiff was injured in an automobile accident as he contends, nor that he suffered some injury thereby, but they do deny total and permanent disability as a result of his injuries.

On behalf of The Metropolitan Life Insurance Company it is contended generally that the plaintiff has not been totally and permanently disabled; nor have his injuries rendered him permanently incapable of engaging in a gainful occupation, for the reason that by the blocking off of the injured eye, or by an operation, vision could be corrected to such a degree as to enable him to engage in some gainful occupation.

On behalf of The Prudential Insurance Company the same contention generally is made and, specifically, that the policy of insurance issued by it is limited to an engagement to indemnify the plaintiff against the permanent loss of the sight of both eyes; and, as the uncontradicted evidence is that the plaintiff has not suffered the permanent loss of the sight of both eyes, and that he retains 1/3 normal vision, it is not liable under its policy.

These are briefly the contentions of the respective parties. They are stated to you as contentions only, but you must rely upon your own recollection of the evidence, for the facts are for your exclusive determination.

The policy issued by The Metropolitan Life Insurance Company contains this provision which is the basis of the plaintiff's claim:

The company "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 a period of at least three months," it will during the continuance of such disability pay to the insured $ 10 for each $ 1000.00 of insurance. The policy is for $ 5000.00 and the monthly payment contracted for is, therefore, $ 50.00 per month.

In order to recover the plaintiff, therefore, must prove to your satisfaction by a preponderance of the testimony,

1. That he has become totally and permanently disabled as a result of bodily injury occurring after the issuance of the policy.

2. That by reason thereof he has been prevented from engaging in any occupation and performing any work for compensation or profit.

3. That such disability has already continued uninterruptedly for a period of at least three months.

The provision of the policy of The Prudential Insurance Company of America, upon which liability is said to arise, is as follows:

"If the Insured, after the first premium on this Policy has been paid, shall furnish due proof to the Company, while this Policy is in full force and effect and while there is no default in the payment of premium, that he at any time after payment of such first premium, while less than sixty years of age, from any cause whatsoever shall have become permanently disabled or physically or mentally incapacitated to such an extent that he by reason of such disability or incapacity is rendered wholly and...