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

• Decision Date: 20 March 1934
• Citation: 253 Ky. 189
• Parties: Equitable Life Assurance Society of United States v. Merlock.
• Court: United States State Supreme Court — District of Kentucky

253 Ky. 189

Equitable Life Assurance Society of United States v. Merlock.

Court of Appeals of Kentucky.

Decided January 16, 1934.

As Modified on Denial of Rehearing March 20, 1934.

1. Insurance. — Former employee suing for disability benefits, under employer's policy covering employees, must establish by competent, relevant evidence that he was totally, permanently disabled by disease commencing before discharge.

2. Insurance. — Former employee's action for disability benefits, under employer's policy covering employees, held properly submitted to jury on conflicting evidence.

3. Appeal and Error. — In former employee's action for disability benefits, under group policy of employer, insurer's failure to present, in trial court, objection that action was based on certificate of insurance and not policy, was waiver of objection.

4. Insurance. — In former employee's action for disability benefits, under group policy of employer, insurer repudiating liability waived all of its elections as to time of payment.

5. Insurance. — If coal miner was unable to follow his occupation as such because of heart disease, there was "total disability" within meaning of employer's group policy.

6. Damages. — General rule is that where plaintiff sustains damage by reason of injury or disease, it is his duty to minimize his damage.

7. Insurance. — If injury or disease of one seeking disability benefits under insurance policy may be corrected by treatment or materially decreased, claimant must exercise ordinary care in efforts to effect cure or to relieve himself.

8. Trial. — Court should instruct jury only on issues presented by pleading and supported by evidence.

9. Trial. — In action for disability benefits under employer's group insurance policy, omission from instruction of qualifications based on testimony of doctors as to effect of treatment was not error, where no such instruction was offered or requested.

Appeal from Floyd Circuit Court.

WM. MARSHALL BULLITT, R. LEE BLACKWELL, and BRUCE & BULLITT and HOWARD & MAYO for appellant.

KIRK & WELLS and Z. WELLS for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Affirming.

The determinate question is whether Isaac Merlock, on March 20, 1932, was "totally and permanently disabled by disease and will thereby presumably be continuously prevented for life from engaging in any occupation or performing any work for compensation of financial value," within the meaning of this phrase, as it is used in the policy of insurance here involved. Merlock was a coal miner for 25 or 30 years, working at the various types of work inside and outside of mines. On March 20, 1932, and for some time prior thereto, he was in the employment of the Inland Steel Corporation of Delaware, which was engaged in operating coal mines. E.R. Price was its superintendent at Wheelright. Its mine, at which Merlock was employed, did not operate regularly on account of conditions of the coal industry. According to the records of the corporation, during the month of November, 1931, the mine operated 21 days. During that time Merlock worked 19 days. His earnings were $79.40. During the month of December, 1931, the mine operated 7 days; Merlock worked 11 days (inside and outside); his earnings for that period were $39.63. In the month of January, 1932, the mine did not operate. Merlock, however, worked for the company 9 days, and earned $27.36. In the month of February, 1932, the mine operated one day; Merlock worked 4 days and earned $11.68. In the month of March, 1932, until the day Merlock left the employment of the company, the mine operated 7 days; Merlock worked 7 days, and earned $17.10.

During these months Merlock "loaded 14 or 15 tons a day." G.C. Sutherland worked with Merlock. He says that Merlock was "a good workman," and "all the men wanted to work with him." He saw him load "trucks, unload slate out of the mine, and move heavy timber." "He was a leader of the gang." John Hendrick was a brakeman at the Inland Steel Corporation's mine. His duty was "to pass up the motors." He was a brakeman where Merlock did his loading and saw Merlock load 12 to 14 tons a day.

The general condition of business became such that it was deemed proper by the Inland Steel Corporation to reduce the number of its employees. In doing so, it undertook to retain all married men and those with dependents. On March 20, 1932, in accordance with this policy, it laid off about 60 or 70 men, leaving possibly one or two single men (who were supporting a mother or a sister). Merlock was unmarried, with no dependents. Of the number discharged he was included. While engaged in his work the heart trouble, of which he now complains, was not apparent to the inmates of the home at which he boarded, nor to his fellow servants. It was the custom of the Inland Steel Corporation to have its employees undergo a physical examination at stated periods. Dr. John Bailey, residing at Wheelright, was its physician who conducted such examinations. On November 6, 1931, while engaged in making regular physical examinations of its employees, he examined Merlock, and observed that he was a man "of good physique, around 40 years old, well nourished, and normal in every respect, except he had a murmur in the aorta valve, which could be heard in the region of the heart," but "it was not a condition that would prevent him loading coal or doing work around the mine," nor "impair his efficiency or ability to engage in such work." In November he administered to him the Wasserman test, which showed four plus. Contrariwise, Merlock testifies that after he was examined by the corporation's doctor he was "cut off of the payroll" and given the information that he was not to get "another shift in the mines" on account of his heart. He claims that his heart had been giving him trouble for 2 or 3 months before he quit work and that the affected condition of his heart during that time was about the same as it was at the time he testified herein. To support his testimony, he introduced Drs. Pickelsimer, Wells, and Castle, They examined him on April 5, 1932. They agree that their examination disclosed a diseased heart. "somewhat enlarged, with murmurs in at least three valves (called leaking heart), blood gushing back in the heart"; that owing to the condition of his heart "it beat faster," caused "smothering spells," and "temporary heart failure"; i.e., "the heart would dilate and fall." It was their judgment he was unable to do any kind of work and death might result even "by climbing stairs"; that his heart disease was permanent. Dr. Stephens and Dr. Bailey examined him after April 5, 1932. Dr. Stephens details his examination in this language:

"Briefly the patient was fairly well developed, well nourished, weighed 138 pounds, eyes normal, never complained of his eyes, teeth all right, except a few fillings, no teeth abscessed or connected with any pus or any teeth that threw off any poisons, tonsils normal, so was his throat. The examination of the abdomen was negative, no masses or tumors nor hernia or rupture. Nothing there to indicate a diseased condition, but he did have a diseased heart. He had what is called diseased aorta, or murmur, and a leak in the tricuspid valve of the heart. This murmur was moderately well divided, could be plainly heard in the pulmonary area, the middle part of the chest. The murmur was not discernible under his arms, or that portion of the chest, no swelling indicated, no decomposition. He had some slight enlargement of the heart. *** I am positive he has leakage of the heart, no swelling of the feet or legs, his carriage, gait and posture seemed normal as far as I could tell."

It was the opinion of Drs. Bailey and Stephens there was nothing in the condition of Merlock's heart that would necessarily or unreasonably disable him when engaging in normal labor or physical exertion.

The record of Merlock's work, the amount paid him therefor, the testimony of his fellow workmen, and his conduct in returning and seeking employment of the Inland Steel Corporation after his discharge in March, corroborate Drs. Bailey and Stephens.

The policy expressly provides that the insurance under it shall automatically cease "upon termination of the employee's employment with The Inland Steel Corporation in the classes of employees insured thereunder without regard to the cause of such termination." It contains this clause:

"In the event that any employee while insured under this policy and before attaining the age of 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, the Society will, in termination of all insurance of such employee under this policy, pay equal monthly Disability Installments, the number and amount of which shall be determined by the Table of Installments below; the number of installments being that corresponding to the nearest amount of each installment shall be adjusted in the proportion that the amount of insurance on such employee's life bears to the amount used in the table in fixing the number of installments. The amount of insurance herein referred to shall be that in force upon the date on which said Total and Permanent Disability commenced."

The fact Merlock, with 60 or 70 other employees, was discharged on March 20, 1932, and the reasons therefor, are neither denied nor disputed by any evidence in his behalf except inferentially. He does not deny categorically the testimony of his fellow employees or of the records of the company, showing the quantity and quality of work he actually performed prior to March 20, 1932. The decisive question is, not whether Merlock had disease of the heart, but whether at, and prior to, the...