Jefferson Standard Life Ins. Co. v. Curfman, 12750.

• Decision Date: 04 March 1939
• Docket Number: No. 12750.,12750.
• Citation: 127 S.W.2d 567
• Parties: JEFFERSON STANDARD LIFE INS. CO. v. CURFMAN.
• Court: Texas Court of Appeals

127 S.W.2d 567

JEFFERSON STANDARD LIFE INS. CO. v. CURFMAN.

No. 12750.

Court of Civil Appeals of Texas. Dallas.

March 4, 1939.

Rehearing Denied April 8, 1939.

Appeal from District Court, Rockwall County; G. O. Crisp, Judge.

Action by Donald J. Curfman against the Jefferson Standard Life Insurance Company to recover for total and permanent disability under the terms of a life insurance policy. Judgment for plaintiff and defendant appeals.

Affirmed.

Malone, Lipscomb, White & Seay, of Dallas, and Carl Miller, of Rockwall, for appellant.

Wade & Wade, of Rockwall, for appellee.

BOND, Chief Justice.

On August 11, 1924, on forms furnished by Jefferson Standard Life Insurance Company, appellee made application for life insurance, listing farming as his occupation. The Insurance Company accepted the application and, in accordance with the representations therein and the payment of an annual premium of $59.40, issued to appellee a life insurance policy in the principal sum of $2,500, containing provisions for total and permanent disabilities, reading:

"If after one full annual premium shall have been paid on this policy, and before default in the payment of any subsequent premium, the Insured shall furnish to the Company due proof that he has been wholly and continuously disabled by bodily injuries or disease and will be permanently, continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit, provided, that such total and permanent disability shall occur before the anniversary of the policy on which his age at nearest birthday is sixty years, the Company by endorsement in wrting on this contract will agree to pay

"(a) The premiums which shall become payable after receipt and approval of proof of said disability and during the continuance thereof, and

"(b) Commencing immediately from the receipt and approval by the Company of the original proofs of disability, provided the Insured is still disabled, a monthly income during the lifetime of the Insured, accruing from the date of approval of the proofs of total and permanent disability, prior to the maturity of this policy as an endowment or death claim, of one per cent of the face amount of this policy. The amount otherwise payable at the maturity of this policy shall NOT be reduced by any premiums or installments paid under the above provisions. If disability is total but not obviously permanent it shall be presumed to be permanent after continuous total disability for three months and the waiver and installments shall accrue from the beginning of the fourth month of such continuous total disability after receipt and approval of proof of said total disability by the Company.

"Without prejudice to any other cause of total and permanent disability, the entire and irrecoverable loss of the sight of both eyes, or loss of the use of both hands at or above the wrists, or the loss of the use of both feet at or above the ankle, or the loss of one limb and one eye, or the loss of the use of one hand at or above the wrist and one foot at or above the ankle, shall be considered total and permanent disability within the meaning of this provision.

"Proofs of continued total and permanent disability shall be furnished as often as required by the Company on forms prescribed by the Company and any medical adviser of the Company shall be allowed to examine the person of the Insured in respect to any alleged disability at any time, but not oftener than every six months after the first two years of disability.

"If, however, the Insured fails to furnish due proof or if he recovers so as to be able to engage in any occupation whatsoever for remuneration or profit, the Company's obligation to pay installments or premiums shall cease and the Insured shall resume the payment of premiums on the premium due date following such failure or recovery, any premiums or installments already having been paid by the Company NOT being charged as a lien hereon.

"The payment of any premium by the Company shall increase the values in the Table of Values incorporated in this policy in the same manner as if the premiums were being paid by the Insured.

"While any Non-Forfeiture provision other than automatic premium loan is in effect, or in event of total and permanent disability occurring after the policy anniversary on which his age at nearest birthday is 60 years, or if the Insured shall engage in military or naval service, or any allied branch thereof, in time of war, no disability benefits shall accrue. But should total and permanent disability as above defined occur after the aforesaid anniversary, then after due proof of said disability and endorsement on this contract as above provided, premium payments subsequently falling due will be advanced as a loan without interest secured by this policy. Upon written request by the Insured accompanied by this policy for endorsement, the provision for disability benefits may be discontinued."

The paramount question in this case is, whether or not the evidence discloses that, within the legal interpretation of the above quoted provisions of the policy and the attached application, appellee, by reason of his injury, is "wholly and continuously disabled by bodily injuries or disease and will be permanently, continuously and wholly prevented thereby from pursuing any occupation whatsoever for remuneration or profit."

Appellee (plaintiff) alleged that on July 17, 1935, he stepped upon a nail, which pierced his shoe and entered his right foot, resulting in infection, or septic poison, transmitted to his body, causing injury to his nervous system, the muscles, ligaments, tendons and tendon sheaths of his right foot and leg, the loss of his third and fourth toes, and removal of the metatarsal bone of his right foot, which condition has and will render him totally and permanently disabled, thus preventing him from pursuing any occupation for remuneration or profit, within the purview of the contract of insurance.

Appellee further alleged that, in March, 1936, he submitted proofs of his disability, which "proofs" were approved by appellant and disability benefits at the rate of $25 per month were paid to him each month from March 30, 1936, to and including March 30, 1937; that on April 26, 1937, demand, in writing, was made on the Insurance Company for continuation of such payments, which was refused, and liability denied on the policy. Appellee sought recovery for such monthly benefits at the rate of $25 per month from April 30, 1937, to and including May 30, 1938, or an aggregate of $350, with six per cent. interest from maturity date on each installment, twelve per cent. statutory penalty, and for reasonable attorney's fee; and further, for the annual premium of $59.40 paid to appellant, under protest, in September, 1937, with six per cent. interest thereon from date of payment until paid.

Appellant (defendant) answered by general demurrer, certain special exceptions, general denial, and specially alleged the terms and provisions above related as defenses to plaintiff's claim for further benefits; it recognized liability for the claims originally submitted and paid to March 30, 1937, but denied further liability, because (1) of appellee's failure and refusal to submit to plastic surgery, as recommended by the Company's surgeon and physician, to effect a more comfortable foot, and (2) that appellee has been, is, and will be no longer wholly, continuously and permanently disabled from pursuing some occupation for remuneration or profit.

At the conclusion of the evidence, the cause was submitted to a jury upon special issues and after having been instructed by the charge of the court that "By the term Total Disability, as used herein, is not implied an absolute disability or incapacity to perform any kind of work, but a person disqualified from performing a substantial part of the usual kind of work in which he was engaged at the time of said injury, if any, and further disabled to perform a substantial part of any work or employment which he was able to perform before such injury, if any.", the jury found (1) that the plaintiff, Donald J. Curfman, sustained total disability, as that term has been above defined, from the injuries received to his right foot; (2) that the disability sustained as a result of the injury to plaintiff's right foot is permanent; (3) that $175 is a reasonable attorney's fee for services rendered plaintiff in this cause; and (4) that a person of ordinary prudence, situated as plaintiff Donald J. Curfman is, would not submit to an operation of plastic surgery upon his foot to improve its condition. On the verdict of the jury and the uncontroverted facts, the court entered judgment in favor of plaintiff for the amount in suit.

The propriety of the charge of the court on total and permanent disability depends upon the construction of the contract of insurance above quoted. The policy describes the disability necessary for the insured to recover as that which has been total and continuous and which will permanently, continuously and wholly prevent the insured from pursuing any occupation whatsoever for remuneration or profit. Manifestly, a literal interpretation of the language used would practically nullify it. The insured would have no protection whatsoever. No person could qualify for compensation under it. Evidently the policy was intended to cover some disability to a living being and one in possession of his mental faculties. The nearest approach to a person disabled under a strict literal interpretation of the policy is illustrated by the Fort Worth Court of Civil Appeals in Metropolitan Life Ins. Co. v. Pribble, 82 S.W.2d 414, 415, as one "totally paralyzed and even such a one might get a side show job on the `midway'"; and, we might add another, one who is absolutely insane. Courts will not give such a literal and narrow interpretation to the language of such a...