Franklin Life Ins. Co. v. Burgess, 4-9654

• Decision Date: 14 January 1952
• Docket Number: No. 4-9654,4-9654
• Citation: 219 Ark. 834,245 S.W.2d 210
• Parties: FRANKLIN LIFE INS. CO. v. BURGESS.
• Court: Arkansas Supreme Court

Page 210

245 S.W.2d 210

219 Ark. 834

FRANKLIN LIFE INS. CO. v. BURGESS.

No. 4-9654.

Supreme Court of Arkansas.

Jan. 14, 1952.

Surrey E. Gilliam and Melvin E. Mayfield, El Dorado, for appellant.

Mahony & Yocum, El Dorado, for appellee.

MILLWEE, Justice.

Appellee, John P. Burgess, recovered a verdict and judgment against appellant, Franklin Life Insurance Company, in the sum of $1,100 for eleven months total disability under a health and accident insurance policy, together with twelve percent penalty and attorneys' fees.

The policy was issued in 1946 pursuant to an application stating appellee's occupation as 'Mgr. Burgess & Son Dry Goods and Groceries' and his exact duties as 'Managerial & Clerical'. At that time appellee was a clerk in the Burgess store at Strong, Arkansas. The store handled groceries, dry goods, feed, fertilizer, hardware and other items usually carried by a general store in a small town. As a general clerk appellee worked in all departments of the store. In assembling and selling merchandise he was required to load and unload such articles as farm implements, fertilizer, feed and other heavy items.

Appellee moved with his family to Conway, Arkansas in November, 1948 and put in a neighborhood grocery store. While visiting relatives near Strong on January 22, 1949 appellee received injuries to his left foot by the accidental discharge of a shotgun necessitating the amputation of the limb nine inches below the knee. Phlebitis, an interference in circulation of the blood, developed in the limb resulting in complications which existed at the time of the trial in July, 1951. Physicians described the limb as cold, tender, swollen and stated that it pits on pressure as the result of fluid in the soft tissue. The entire area of the stump is painful on pressure. The stump is stiff and drawn backwards in a fixed position at an angle of ninety degrees to the thigh, and any attempt at manipulation is very painful. Appellee cannot wear an artificial limb. The results of an attempt to prepare the injured limb for an artificial limb by amputation at the knee would be doubtful and dangerous on account of the phlebitis. Doctors have advised appellee against the operation.

Prior to his injury appellee did practically all of the work in connection with the operation of the store except the bookkeeping which was done by his wife. The store building is 22 X 40 feet and adjoins a sixroom dwelling occupied by appellee and his family. Merchandise is kept in shelves which extend up eight and one-half feet from the floor on one wall and six feet on the opposite wall. A ladder is used in removing articles from the higher shelves. Appellee handled a general line of groceries, bottled drinks and other articles usually carried in such stores. The canned goods and other items such as sugar, potatoes and flour were delivered to the store in cases, cartons and sacks weighing up to one hundred pounds. These were handled by appellee in distributing the merchandise to the shelves and other places about the store where it was kept for sale. Appellee opened the store at six a. m. He did all the janitor work, buying, most of the selling and all the heavy work, including the transfer of cases of bottled drinks to and from a storage room.

Following his injury, appellee resumed such light duties as he was able to perform around the store about June 1, 1949. He cannot walk without crutches and the arch of his right foot is broken down. He can watch the store when his wife and other clerks are out, make change and accept payments for merchandise. He can sell small items such as a cold drink or package of cigarettes, but cannot wait on customers generally. He can no longer handle merchandise delivered in case lots or large sacks, make sales of heavy articles, place and remove merchandise from the higher shelves, or do any of the work of cleaning up the premises. His wife has opened the store since his injury and, with the assistance of her nephew and sister, has performed the major portion of the duties formerly performed by appellee. According to the medical testimony, appellee, while sitting in a chair, could perform such duties as answering the phone or using the cash register and adding machine for only short periods of time without suffering intense pain.

Dr. F. L. Irby testified on behalf of appellee as follows: 'Q. We have enumerated to you, doctor, what he did before and after his injury, and you have told about the things you thought he could perform would you say there are any substantial part of his duties that he can perform in the usual and ordinary way that he performed them before he lost his leg? A. No, sir, the regular duties that he performed in the grocery business before that, he can't do it now; there are some little things that he might be able to do, but the regular duties, he is unable to do them today. Q. I am talking about, now, doctor, the things that he can do now, can he do those in the usual and ordinary way that he did them before he got hurt? A. No, sir.'

On cross-examination the doctor testified: 'Q. In general, he could do any kind of work about that store that didn't involve manual labor, lifting heavy articles, that didn't require him to be engaged in it for any extended length of time? A. He could do anything that he didn't have to walk and use his hands to do; if it was something that he could show, or tell them what to do he could do it, but if he had to use his hands, or walk and get something, or handle things, and move them he is not able to do it.'

Upon being asked to give his opinion as to appellee's disability, Dr. L. G. Fincher stated: 'We assume that when a man can't do the usual duties of his occupation he becomes disabled. Now, you specifically mention--you specify certain things he did--I have worked in the same kind of store that he has, and I know exactly what his duties are, and he can't do the work in that store. I could admit right quickly that he might have it done, but he can't do it, and that's why I assume that he is disabled. I just feel that he can't do his work as he did it before his injury.'

At the outset appellant recognizes the rule followed by this court in numerous cases as stated in AEtna Life Ins. Co. v. Spencer, 182 Ark. 496, 32 S.W.2d 310, 312: 'Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged. This court has held that provisions in insurance policies for indemnity in case the insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform all the substantial and material acts of his business or the execution of them in the usual and customary way. Industrial Mutual Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S.W. 457, 29 L.R.A.,N.S., 635, 21 Ann.Cas. 1029; Brotherhood of Locomotive Firemen & Enginemen v. Aday, 97 Ark. 425, 134 S.W. 928; and AEtna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S.W. 335. * * *

'The object to be accomplished was to indemnify the insured for loss of time for being wholly disabled from prosecuting his business. It has been well said that, if the language used was to be construed literally, the insurer would be liable in no case unless the insured should lose his life or his mind. Of course, as long as he is in possession of his mental faculties, he is capable of transacting some part of his business; but as we have already seen, he was not able to prosecute his business within the meaning of the policy unless he was able to do all the substantial acts necessary to be done in its prosecution.'

However, appellant contends the policy here involved is not one where total disability is insured against so that the courts are free to define the nature and extent of the disability. It is argued that appellee was insured against disability resulting in total loss of time, that the language of the policy must be construed literally and that appellee is precluded from recovery unless he was wholly and continuously disabled to perform each and every duty pertaining to his business or occupation.

The policy provides: "Monthly Disability Indemnity' Part I. If injury or illness as before described shall wholly, necessarily and continuously disable the Insured and prevent him for a period of ninety days from performing each and every duty pertaining to his occupation, the company will allow the monthly indemnity for the period the Insured shall thereafter be so disabled but not exceeding twelve consecutive months. The first payment of such indemnity shall be made one month following the ninety-first day of such disability and succeeding payments shall be made each month thereafter during such period.

'After the payment of monthly indemnity for the period of twelve consecutive months, as aforesaid, the company will continue the payment of the monthly indemnity of the same amount so long as the insured shall be wholly, necessarily and continuously disabled and prevented by such injury or illness from engaging in any occupation or employment for wage or profit.

'Indemnity is not payable for the first ninety days of any period of disability as defined in Part I.' In Part II, which follows, the disability for which indemnity is payable in Part I is referred to as 'total disability'.

The Spencer case, supra involved facts and a disability clause somewhat similar to those in the instant case. There are many other decisions to the same effect. A few of these are: Mutual Life Ins. Co. v. Marsh, 186 Ark. 861, 56 S.W.2d 433; Metropolitan Life Ins. Co. v. Weathersby, 190 Ark. 1050, 82 S.W.2d 527; AEtna Life Ins. Co. v. Martin, 192 Ark. 860, 96 S.W.2d 327; North American Accident Ins. Co. v. Branscum, 209 Ark. 579, 191 S.W.2d 597.

Appellant relies on such cases as Missouri State Life Ins. Co. v. Snow, 185 Ark. 335, 47...