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

• Decision Date: 21 March 1935
• Docket Number: 6 Div. 697
• Citation: 230 Ala. 297,160 So. 713
• Parties: EQUITABLE LIFE ASSUR. SOC. OF THE UNITED STATES v. WATTS.
• Court: Alabama Supreme Court

160 So. 713

230 Ala. 297

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

6 Div. 697

Supreme Court of Alabama

March 21, 1935

Rehearing Denied April 25, 1935

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action to recover disability benefits under a group policy of insurance by Ed Watts against the Equitable Life Assurance Society of the United States. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

Howze &amp Brown, of Birmingham, for appellant.

Perry &amp Powell, of Birmingham, for appellee.

BOULDIN Justice.

The disability benefit sued for was payable "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, upon receipt of due proof of such disability before the expiration of one year from the date of its commencement."

Count A, on which the case was tried, averred such disability arose on to wit, June 24, 1931, while insured was in the employ of Sloss Sheffield Steel & Iron Company, the employer, holding the group policy, because of chronic asthma, chronic arthritis, and hypertension (high blood pressure).

Upon careful consideration of the evidence, we are of opinion it made a case for the Jury on this issue.

Evidence tended to show the insured to be a negro laborer, 57 years of age, employed as a coal miner, taken out of the mines in the spring of 1931 because of disability, and put to light outdoor work, clean-up work, cutting weeds, removing litter etc., and finally laid off June 24, 1931; that later he was assigned to CWA work relief, where his duties were "toting water." Further testimony tended to show such work was performed intermittently with pain and exhaustion, with continuing rales, symptoms of asthma. Competent medical authority reported total disability as per the complaint in the fall of 1932. There was conflict in professional opinion as to his condition, some on examinations at different periods, and some conflict as to condition about the time of the trial.

The mere fact that, when not suffering an acute attack of asthma, he could and did, up to the time of trial, perform some such work, would not justify an affirmative instruction for defendant. If work is accompanied by suffering, aggravation of a chronic disease, in such sort that sound medical advice says not to work, the fact that there is still strength to do it at times, and, under stress of circumstances he does so perform, will not defeat his right to the total permanent disability benefit under stipulations here presented. New York Life Ins. Co. v. Torrance, 228 Ala. 286, 153 So. 463; Id., 224 Ala. 614, 141 So. 547; Equitable Life Assur. Soc. v. Dorriety (Ala.Sup.) 157 So. 59; Metropolitan Life Ins. Co. v. Blue, 222 Ala. 665, 133 So. 707, 79 A.L.R. 852; United States Casualty Co. v. Perryman, 203 Ala. 212, 82 So. 462; Travelers' Ins. Co. v. Plaster, 210 Ala. 607, 98 So. 909; New York Life Ins. Co. v. McLean, 218 Ala. 401, 118 So. 753.

The trial court, in his oral charge, defined permanent total disability, as applied to this case, in these words "Now, permanent disability, within the meaning of this policy, does not mean, does not require a state(ment) of absolute helplessness. In other words, it does not mean that a man must be absolutely helpless, but here is what it means: It means the inability to do substantially all of the material acts necessary to prosecution of some occupation for which the plaintiff is fitted by training and...