Ellis v. New York Life Ins. Co.
| Decision Date | 05 November 1925 |
| Docket Number | 5 Div. 923 |
| Citation | 106 So. 689,214 Ala. 166 |
| Parties | ELLIS v. NEW YORK LIFE INS. CO. |
| Court | Alabama Supreme Court |
Rehearing Denied. Jan. 21, 1926
Appeal from Circuit Court, Chilton County; G.F. Smoot, Judge.
Action on a policy of life insurance by John T. Ellis against the New York Life Insurance Company. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.
Grady Reynolds, J.O. Middleton, and O.L. Reynolds, all of Clanton for appellant.
Stokely Scrivner, Dominick & Smith and J.M. Gillespy, Jr., all of Birmingham, for appellee.
The suit is for recovery on two life insurance policies under the total disability clauses therein. The action of the trial court in giving the affirmative charge for the defendant is the only question here presented. These clauses and the salient features of the evidence appear in the report of the case.
The sums claimed were payable on the anniversary of the policies and conditioned upon the continued disability. As a condition to the right of recovery under these clauses the policies provided that the insured should have become "wholly disabled by bodily injury or disease so that he is and will be presumably thereby permanently and continuously prevented from engaging in any occupation for remuneration or profit." During a portion of the period for which suit is brought the evidence shows such disability, but plaintiff's testimony and the admission contained in the letters written to the defendant company disclose that in September, 1922, his condition had so improved that he erected an oil station, and had successfully operated the same since November 1, 1922, and added to the business the sale of automobile tires. In his letters plaintiff stated he would file no claim for disability, as his "condition had improved very much," and that he was able to attend to his business "reasonably well"--adding, "and as long as I can do this I will of course claim no further disability."
We are persuaded the case comes within the influence of AEtna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 So. 166, 15 L.R.A. (N.S.) 252, wherein it was held from the evidence then offered, that plaintiff was "not totally disabled, so as to prevent him from engaging in any productive occupation," and that the affirmative charge was due to be given the defendant.
Appellant relies upon the authority of U.S. Casualty Co. v Perryman, 203 Ala. 212, 82 So. 462, to which we may add that of Travelers' Ins. Co. v. Plaster, 210...
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