Equitable Life Assur. Soc. of U.S. v. Davis, 6 Div. 778
Decision Date | 10 October 1935 |
Docket Number | 6 Div. 778 |
Citation | 231 Ala. 261,164 So. 86 |
Parties | EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. DAVIS. |
Court | Alabama Supreme Court |
Rehearing Denied Nov. 29, 1935
Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.
Action by Jim Davis against the Equitable Life Assurance Society of the United States, on a policy of group insurance, wherein on plaintiff's death after trial, cause was revived in name of Galvester Davis, as administratrix of the estate of Jim Davis, deceased. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals, under section 7326, Code 1923.
Reversed and remanded.
Howze & Brown, of Birmingham, for appellant.
Harsh Harsh & Hare, of Birmingham, for appellee.
The pertinent stipulations of the policy of group insurance, upon which this action for total disability benefit is based, read: "In the event any employee while insured under the aforesaid policy and before attaining the age of sixty becomes 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." And: "It is further agreed that *** the severance of both hands at or above the wrists *** will of themselves be considered as Total and Permanent Disability within the meaning of this provision."
In proof of disability the insured made affidavit, saying:
The physician's statement by Dr. Lester, part of such proofs, discloses the following questions and answers:
Dr. Payne testified:
Dr. Bradford testified that on examination he found an injury to the left arm and shoulder, resulting from being shot with a shotgun.
After some evidence tending to show the doctor's special knowledge of the classes of labor done in coal mining, expressing his opinion, over objection, that the plaintiff was not in physical condition to do such work, he was asked: "Well, now, will you tell the jury whether or not, medically speaking, that man's condition is such that he can do manual labor?" Defendant objected on general grounds, and because the testimony called for "invades the province of the jury; calls for the conclusion of the witness *** substitutes the opinion of this witness as an expert not only medically but in all kinds and classes of manual labor," etc. Objection being overruled, defendant excepted. Witness answered: "He is not."
On cross-examination Dr. Bradford said: The doctor further testified the plaintiff had symptoms of syphilis, in the tertiary stage; but his evidence taken as a whole is to the effect that this was curable, and he based his opinion of total permanent disability on the fact that he was in like condition as a man who had lost one arm and hand.
The plaintiff was an illiterate colored laborer, thirty-eight years old at the time of his injury; farmed during his early life, and for ten years had worked at loading coal in a coal mine. He had done no work since his injury, been offered no job, and sought none. In training and experience he is to be classed as a "manual laborer."
In two recent cases, considered by the full court, we have reviewed our former decisions, and expressed our views on the construction of disability provisions of like import as here presented.
In one of these, Protective Life Ins. Co. v. Hale, 161 So. 248, 252, it was said: ."
In the other case, ...
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