Industrial Mut. Indemnity Co. v. Hawkins

• Decision Date: 04 April 1910
• Citation: 127 S.W. 457
• Parties: INDUSTRIAL MUT. INDEMNITY CO. v. HAWKINS.
• Court: Arkansas Supreme Court

127 S.W. 457

INDUSTRIAL MUT. INDEMNITY CO. v. HAWKINS.

Supreme Court of Arkansas.

April 4, 1910.

Appeal from Circuit Court, Pulaski County; Jas. H. Stevenson, Judge.

Action by William Hawkins against the

Industrial Mutual Indemnity Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Carmichael, Brooks & Powers, for appellant. Whipple & Whipple, for appellee.

FRAUENTHAL, J.

This was an action instituted upon a policy of insurance to recover indemnity for the time that plaintiff was unable to prosecute any business by reason of an injury received by him. On March 4, 1907, the defendant issued its indemnity policy of insurance, whereby it agreed that if the plaintiff received an injury "which shall independently of all other causes immediately, and wholly disable and prevent the insured from the prosecution of any and every kind of business for a period of not less than one week," it would make certain weekly payments to him during the continuance of such disability. The plaintiff was a day laborer, and on September 3, 1908, when the policy was in full force, he was injured while engaged in tearing up old machinery at the shops of the St. Louis, Iron Mountain & Southern Railway Company. The testimony on the part of the plaintiff tended to prove that the injury consisted of a contusion and abrasion of the right knee, and that he was wholly incapacitated and disabled by reason thereof from work of any and every kind from the date of the injury until October 5, 1908. The testimony also tended to prove that his disability did not render him so helpless that he could not have done some other kind of business if he had been possessed of the mental capacity. The evidence showed that plaintiff was uneducated and was not capable of earning a livelihood in any other work or business except by manual labor. The sole question involved in the case for determination is whether or not under the above provision of the policy the plaintiff was injured to such an extent as to entitle him to a recovery. Upon that question the court instructed the jury that the plaintiff would be entitled to recover "if you believe from the evidence in the case that the plaintiff sustained an injury which of itself wholly disabled and prevented him from doing any and every kind of work pertaining to his occupation, or within the scope of his ability, for a period of over one week. * * * If, on the other hand, you find from the evidence that the plaintiff's injury was not such as to wholly disable and prevent him from doing any and every kind of work pertaining to his occupation within the scope of his ability for a period of over one week, your verdict will be for the defendant." And the court refused to instruct the jury at the request of defendant as follows: "The jury is instructed that, unless they find from the evidence that the injury sustained by the plaintiff was such as to wholly disable and prevent the plaintiff from the prosecution of any and every kind of business, you will find for the defendant." A verdict was returned in favor of plaintiff, and defendant has appealed to this court.

The right of the plaintiff to recover in this case depends upon the interpretation of the language of the contract describing the extent of the disability under which he must suffer from the injury, and what would constitute a total disability within the meaning of the policy. In the construction of all contracts the true object is to arrive at the intention of the parties; and, in order to do that, it is necessary to take into consideration the object and purpose of the parties in making the agreement. In construing such a provision as is involved in this policy, that meaning should be given to the language as will be consistent with the fair import of the words used, having reference to the object and purpose of the parties in making the contract. The contract sued on is like any other insurance policy, and its provisions should therefore be construed most strongly against the insurer. As the language employed is that of the defendant, a construction will not be adopted which will defeat a recovery if it is susceptible of a meaning that will permit one. American Bonding Co. v. Morrow, 80 Ark. 49, 96 S. W. 613, 117 Am. St. Rep. 72; Title Guaranty & Surety Co. v. Bank of Fulton, 89 Ark. 471, 117 S. W. 537. The general object of such a contract as is involved in this case is to furnish to the insured an indemnity for the loss of time by reason of the injury which prevents him from prosecuting business. Its evident purpose is to secure him means of living during the time that he is unable to earn a livelihood. The language employed in this provision of the policy is for the purpose of defining what will constitute a total disability to earn a livelihood. Mr. Kerr in his work on Insurance (sections 385, 386) defines a total disability within the meaning of this character of policy of indemnity insurance as follows: "Total disability does not mean absolute physical disability on the part of the insured to transact any kind of business pertaining to his occupation. ...