Equitable Life Assur. Soc. v. Serio

• Decision Date: 25 November 1929
• Docket Number: 28077
• Citation: 124 So. 485,155 Miss. 515
• Court: Mississippi Supreme Court
• Parties: EQUITABLE LIFE ASSUR. SOC. v. SERIO

124 So. 485

155 Miss. 515

EQUITABLE LIFE ASSUR. SOC. v. SERIO

No. 28077

Supreme Court of Mississippi

November 25, 1929

Division B

1 INSURANCE. Recovery for total and permanent disability does not require condition of complete helplessness.

Recovery under insurance policy by reason of total and permanent disability does not require a condition of complete helplessness, nor such an entire physical or mental inability in respect to pursuit of an occupation or employment that the insured can do absolutely nothing.

2 INSURANCE. Insured becoming afflicted with tuberculosis was "totally disabled" within policy authorizing recovery therefor, though able to assist in operation of country store.

Where insured under policy containing provision authorizing recovery for total and permanent disability became afflicted with tuberculosis, he was "totally disabled" within meaning of policy, regardless of fact that he was able to assist family to certain extent in operation of small country store.

3 INSURANCE. Tuberculosis was "permanent disability" within policy authorizing recovery therefor without proof that insured could not recover.

Tuberculosis constituted a permanent disability within insurance policy providing for recovery in case of total and permanent disability without necessity of proof that insured was totally disabled and could not recover, in that the words "permanent disability" as used therein do not require that disability be a lasting one without any hope or possibility of recovery or change for the better, and are used for the purpose only of excluding disabilities which are merely temporary.

HON. R. L. CORBAN, Judge.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Action by John J. Serio against the Equitable Life Assurance Society. Judgment for plaintiff, and defendant appeals. Affirmed.

Affirmed.

Brandon & Brandon, of Natchez, and Watkins, Watkins & Eager, of Jackson, for appellant.

The disability claimed by appellee did not either physically or mentally incapacitate him totally and/or permanently, to such an extent that he was rendered wholly unable to engage in any occupation or perform any work for any kind of compensation of financial value.

Tuberculosis does not necessarily cause total or permanent disability, and tuberculosis does not necessarily of itself incapacitate any person from engaging in any occupation or performing work for any kind of compensation of financial value.

Shipp v. Metropolitan Life Ins. Co. (Miss.), 111 So. 453; Metropolitan Casualty Ins. Co. v. Cato, 74 So. 114; Life & Casualty Ins. Co. of Tenn. v. Jones, 73 So. 556.

Appellee is required to show a total and permanent disability to the extent that he is physically or mentally incapacitated to such an extent that he is rendered wholly and permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value.

Lee v. New York Life Ins. Co., 188 N.C. 538, 125 S.E. 186; Porten v. Jefferson Standard Life Insurance Co., 30 Ga.App. 245, 117 S.E. 772.

Kennedy & Geisenberger, of Natchez, for appellee.

Whether or not the insured was totally and permanently disabled was one for the jury to decide.

Provident Life Insurance Co. v. Anding, 144 Miss. 277, 109 So. 607; Metropolitan Life Insurance Co. v. Bovello, 51 A.L.R. 1040.

What is meant by permanent disability must be construed in the terms of the policy, and if the proofs offered by the insured are sufficient to show him permanently disabled, as well as totally disabled, the company becomes liable to him. It is the condition of his health at that time and not his or the company's guess as to the condition of his health at some distant time.

Can the company say to him then: "It may appear in 1929 or 1930 that you were not totally and permanently disabled, as you now claim." Obviously they could not. The company is liable or not liable to pay the installment to the insured at the time and upon the condition of his health at the time they are negotiating with one another.

OPINION

Griffith, J.

For several years appellee has carried a policy of life insurance with appellant insurance company. As an additional feature of this policy, and for an additional premium therein required, there is the following provision:

"If the insured, while less than sixty years of age and while this policy is in full force and effect, shall become totally and permanently disabled, and shall furnish due proof that he is physically or mentally incapacitated to such an extent that he is rendered wholly or permanently unable to engage in any occupation or perform any work for any kind of compensation of financial value, and that such disability has then existed for not less than sixty days, the society will, upon receipt of said proof, waive the payment of any premium or premiums that may become payable thereafter under this policy during such disability. And six months after receipt of said proof of disability, the insured may draw a sum not to exceed one-tenth the face amount of this policy and a like sum annually thereafter during the continuance of such disability.

"If the Society accepts proof of disability under this policy, it shall have the right at any time thereafter, but not more frequently than once a year, to demand of the insured proof of the continuance of such disability, and if the insured shall fail to furnish such proof, or if it at any time appears that the insured has become able to engage in any occupation whatsoever for remuneration or profit, no further premiums shall be waived and no further installment payments will be made hereunder."

Appellee successively made proper claims for two annual installments under the provision aforesaid, but payment was refused; and having sued therefor, he recovered judgment. The facts are, in brief, that the insured became afflicted with tuberculosis, and under the advice of his physician he was constrained to cease from the performance of any regular manual labor, but was able nevertheless during a part of nearly every day to be up and around a small country store which he and his wife, with the aid of the children, were operating, and in the back part of...