Equitable Life Assur. Soc. of U.S. v. Wiggins

• Decision Date: 28 May 1934
• Citation: 115 Fla. 136,155 So. 327
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. WIGGINS.
• Court: Florida Supreme Court

155 So. 327

115 Fla. 136

EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. WIGGINS.

Florida Supreme Court, Division A.

May 28, 1934

Rehearing Denied June 20, 1934.

Error to Circuit Court, Escambia County; L. L. Fabisinski, Judge.

Action by Randolph Wiggins against the Equitable Life Assurance Society of the United States. Judgment for plaintiff, and defendant brings error.

Affirmed.

COUNSEL E. C. Maxwell, of Pensacola, for plaintiff in error.

John M Coe, of Pensacola, for defendant in error.

OPINION

DAVIS Chief Justice.

This was an action on a group insurance policy providing indemnity, amongst other things, for total and permanent disability. By appropriate pleadings the issue was developed for decision by trial whether or not total and permanent disability as a basis for recovery existed. Recovery was awarded. The defendant insurance company has brought the judgment here for review upon writ of error.

The following is the provision of the policy upon which plaintiff recovered:

'In the event that any employee while insured under the aforesaid policy and before attaining age 60 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 * * * the Society will, in termination of all insurance of such employee under the policy, pay equal monthly disability installments, the number and amount of which shall be determined by the table of installments,' etc.

It was shown in support of plaintiff's claim that he was 28 years old, skilled only in manual work, with a sixth-grade education. For good many years he had worked with his employer in a pipe-fitting gang. Because of an earlier nondisabling injury to his right wrist, causing an adhesion between the skin and tissues of the joint impairing his grip in that hand, as well as because of a duodenal ulcer which plaintiff had suffered for a long time, plaintiff was compelled to seek less laborious work than in the pipe-fitting gang, so he secured a transfer to operations in the retort building. There his work consisted of opening and closing valves, and in recording the reading of hydrometers. After working at his new job for a while, plaintiff got into a cotton truck wreck. This shattered the elbow joint in his left arm, but it healed without fixation, although the arm hung limp and was useless. Plaintiff then went back to work at the retort operation, but because he could not reach up to turn the valves his employer declared him unfit and dismissed him. Plaintiff was utterly unskilled in any special or clerical occupation. He lost a 'relief work' job raking and leveling dirt on the streets under the government relief work system, because he was unable to rake by reason of his physical condition. An operation on his elbow joint, performed with a view of immobilizing the joint of the limp arm, failed. The duodenal ulcer persists. By reason of the latter fact plaintiff is unable to undergo physical exertion or to eat substantial food. His left hand is good, but his left elbow has no joint. His right elbow joint is good, but his right hand is impaired. So with a stomach incapacitated to assimilate food, an arm disabled which was required for use in the performance of manual labor, a mind untrained for any task requiring an education to execute it, and a record of having been discharged from more than one attempt to hold a job which would enable him to earn compensation by way of wages, plaintiff's case was submitted to a jury. The jury found a verdict to the effect that plaintiff was in fact totally and permanently disabled within the meaning of the policy as interpreted to them by the court.

As summarized in the brief of plaintiff in error, it will thus be seen that what plaintiff proved as a total and permanent disability is a duodenal ulcer of several years' duration, an injury to the right wrist of ten years' duration, which weakens the strength of the grip but does not interfere with control, an injury to the left elbow which by reason of the destruction of the joint seriously interferes with the control and direction of movement of the left arm but not of the strength or control of the left hand and grip coupled with proof that the combination of these several injuries so handicaps, weakens, and impairs the working ability of plaintiff in the only line of work he knows how to do, that he is unable to secure and hold an...