Equitable Life Assur. Soc. v. Dorriety, 6 Div. 419.

• Decision Date: 04 October 1934
• Docket Number: 6 Div. 419.
• Court: Alabama Supreme Court
• Parties: EQUITABLE LIFE ASSUR. SOC. v. DORRIETY.

157 So. 59

229 Ala. 352

EQUITABLE LIFE ASSUR. SOC. v. DORRIETY.

6 Div. 419.

Supreme Court of Alabama

October 4, 1934

Rehearing Denied Nov. 1, 1934.

Appeal from Circuit Court, Jefferson County; Wm. L. Hogue, Special Judge.

Action on a policy of insurance by Floyd Z. Dorriety against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Howze &amp Brown, of Birmingham, for appellant.

W. A Denson, of Birmingham, for appellee.

KNIGHT Justice.

Action by plaintiff, appellee, upon an insurance policy, providing for disability benefits in case of accidental injury resulting in total and permanent disability, occurring within the life of the policy contract, and of which the insurer was furnished due proof before default in the payment of premiums.

After demurrers were sustained to original counts 1 and 2, the plaintiff amended his complaint by filing counts 3 and 4.

The defendant demurred to the complaint as last amended, and to each count thereof separately and severally. The amended complaint at that time consisted of counts 3 and 4, as there was no effort to amend counts 1 and 2, after demurrers were sustained thereto.

It is now insisted by appellee that the record does not disclose any ruling of the court on the demurrers to the added counts. There is no merit in this insistence. The record shows that the demurrers to the amended complaint were considered and overruled by the court. This necessarily shows that the demurrers were overruled to counts 3 and 4, as they were, at that time, the only counts in the complaint.

Counts 3 and 4 contain every necessary averment to meet the rule of good pleading, and were not subject to any ground of demurrer assigned thereto. American Bankers' Ins. Co. v. Dean, 227 Ala. 387, 150 So. 333; Sovereign Camp, W. O. W., v. Gunn, 224 Ala. 444, 140 So. 410; Bankers' Credit Life Ins. Co. v. Lee, 224 Ala. 398, 140 So. 609; Commercial Casualty Ins. Co. v. Hubert, 226 Ala. 357, 147 So. 134; Inter-Ocean Casualty Co. v. Foster, 226 Ala. 348, 147 So. 127; National Life & Accident Ins. Co. v. Hannon, 212 Ala. 184, 101 So. 892.

The evidence in the case is without dispute that plaintiff had paid all premiums due on the policy up to December 18, 1928, and under the terms of the policy a grace of thirty-one days was allowed within which any premium, other than the first, might be paid, and during which period the policy would continue in full force and effect.

The policy contract with reference to total, permanent disability benefits contains the following consecutive provisions:

"(1) Disability Benefits before age [of] 60 shall be effective upon receipt of due proof, before default in the payment of premium, that the insured became totally and permanently disabled by bodily injury or disease after this policy became effective and before its anniversary upon which the insured's age at nearest birthday is 60 years, in which event the Society will grant the following benefits:

"(a) Waive payment of all premiums payable upon this policy falling due after the receipt of such proof and during the continuance of such total and permanent disability; and

"(b) Pay to the insured a monthly disability annuity as stated on the face thereof; the first payment to be payable upon receipt of due proof of such disability and subsequent payments monthly thereafter during the continuance of such total and permanent disability. * * *

"Disability shall be deemed to be total when it is of such an extent that the insured is prevented thereby from engaging in any occupation or performing any work for compensation of financial value, and such total disability shall be presumed to be permanent when it is present and has existed continuously for not less than three months * * *."

The evidence is without any sort of dispute that the plaintiff, as the result of an automobile accident, received severe, serious, and lasting injuries while going to his place of business on December 7, 1928. In this accident, his shoulder was disclocated, both legs were broken, the right leg about three inches below the hip, and fragments of the bone overlapping causing shortening of the leg. The left leg was broken, the fracture occurring where the neck of the bone joins the shaft. He has partial ankylosis of the right knee, which has not yielded to treatment.

Dr. Charlton S. Harris, the attending physician, testified fully as to the injuries, and stated that it was his opinion that the plaintiff was permanently and totally disabled. This physician stated that the plaintiff can only stand for a short time upon his feet, can do no manual labor, and that he did not know "of anything that he was fit to do." That he did not believe his condition would yield to treatment.

Prior to the accident the plaintiff worked at a filling station, pumped gas, and did anything necessary to be done at the station. Since the injury the plaintiff has not been able to do the work he did before the accident. The injuries have not ceased to give him pain. According to one witness, his wife, he can stand on his feet only a few minutes at a time, and then with expressions of pain.

As to the total, permanent, and continuous disability of the plaintiff, the evidence was, under the rules of law applicable there-to, sufficient to carry the case to the jury on that issue.

It is true that instead of "scrambling around with a tin cup on the street," the plaintiff has attempted to do some little work to keep "the wolf from his door," but he has been able to do only a little work, and certain it is that since the accident, and as a result of it, he has been unable to do all the material acts and things necessary to the conduct and prosecution of his business or occupation in substantially his customary and usual manner.

In our recent case of New York Life Ins. Co. v. Gaston Torrance, 228 Ala. 286, 153 So. 463, 464, it was said, with reference to what constituted total and permanent disability within the meaning of a policy contract, which contained the following words: "Thereby permanently and continuously prevented (him) from engaging in any occupation whatsoever for remuneration or profit": "The terms of the policy are that total disability must be such as that it 'thereby permanently and continuously prevented (him) from engaging in any occupation whatsoever for remuneration or profit.' If his physical or mental condition was such that his attempt to engage in an occupation was not accompanied with the ability to do so in its substantial features with the skill and accuracy which such business demands, in the usual and customary manner, he is totally disqualified from pursuing that occupation, though he does undertake to carry it on, but, in doing so, such want of skill and ability are manifest."

The evidence in the case, as above pointed out, was sufficient to require it on this issue to be submitted to the jury. United States Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462; Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909; 2 Bacon on Life & Accident Ins., § 554; Aetna Life Ins. Co. v. Lasseter, 153 Ala. 630, 45 So. 166, 15 L. R. A. (N. S.) 252; New York Life Ins. Co. v. Torrance,

224 Ala. 614, 141 So. 547.

It is also insisted by appellant that the insured did not pay the semiannual premium falling due on said policy on December 18, 1928, or within thirty-one days after the due date of premium furnish it with due proof that he had become totally and permanently disabled.

The evidence is without dispute that the premium falling due on December 18, 1928, has never been paid.

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