John Hancock Mut. Life Ins. Co. v. Schroder

• Decision Date: 24 March 1938
• Docket Number: 6 Div. 280.
• Citation: 180 So. 327,235 Ala. 655
• Parties: JOHN HANCOCK MUT. LIFE INS. CO. v. SCHRODER.
• Court: Alabama Supreme Court

180 So. 327

235 Ala. 655

JOHN HANCOCK MUT. LIFE INS. CO. v. SCHRODER.

6 Div. 280.

Supreme Court of Alabama

March 24, 1938

Rehearing Denied April 21, 1938.

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action to recover disability benefits under a policy of life insurance by Bernard A. Schroder against the John Hancock Mutual Life Insurance Company. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

In action for disability benefits under life policy for entire and irrecoverable loss of use of both feet, testimony of physician who had long treated insured in effort to better condition of feet, that in his opinion loss of use of feet was irrecoverable, was properly admitted, notwithstanding that jury saw insured's feet, where opinion of witness would aid jury in arriving at conclusion whether insured lost substantial use of feet.

The defendant reserved exceptions to the following parts of the oral charge:

(1) "The entire loss of his feet, the use of both feet within that policy means that the plaintiff has lost the substantial use of both feet, and before the plaintiff can recover in this case you must be reasonably satisfied from the evidence that he has lost the substantial use of both of his feet as feet, that is for the purpose that people commonly and ordinarily use their feet."

(2) "If you find from the evidence in this case that the plaintiff has the substantial use of either foot, why, then the plaintiff cannot recover in this case, because the policy provides that he must have lost the entire use of both feet and if he has substantial use of either foot then that would not be the entire loss within the meaning of the policy."

(3) "However, if you are reasonably satisfied from the evidence that the plaintiff has lost the substantial use of both of his feet as feet for the purpose for which people commonly and ordinarily use their feet, why, then the plaintiff would be entitled to recover in this case."

The following charges were refused to defendant:

D. "If you are reasonably satisfied from the evidence that the plaintiff has, with the aid of canes, a practical use of his feet, or one of them, for the purpose of standing and walking, your verdict should be for the defendant."

E. "If you are reasonably satisfied from the evidence that the plaintiff has, with the aid of canes, a substantial use of his feet for the purpose of standing and walking, your verdict should be for the defendant."

C. "I charge you that the burden is on the plaintiff to reasonably satisfy you from the evidence that the usefulness of both of his feet for the purposes of standing and walking has been lost, and unless you are so reasonably satisfied, your verdict should be for the defendant."

(15) "I charge you that the plaintiff has not suffered the entire loss of both feet within the meaning of that term of the policy if you are reasonably satisfied from the evidence that he has any use of either of his feet for the purpose of standing and walking, notwithstanding, you may also be reasonably satisfied from the evidence that he walks with difficulty, and only with the aid of canes, and that he tires easily, and suffers pain in walking."

(13) "If you are reasonably satisfied from the evidence that the plaintiff has some use of his feet, or either of them, for the purpose of standing and walking, no matter how small that use may be, I charge you that the plaintiff has not suffered an entire loss of the use of both feet within the meaning of that term as used in the policy, and your verdict should be for the defendant."

(16) "If you are reasonably satisfied from the evidence that an operation could be performed upon plaintiff's feet, or legs, or one or more of his feet or legs, and that such operation would result in the plaintiff regaining a material and substantial use of his feet, or one of them for the purpose of standing and walking, and that such operation would not be attended by any unusual danger to plaintiff's life and health, and that a reasonably prudent person in the same or similar circumstances would undergo such operation, then I charge you that plaintiff has not suffered the irrecoverable loss of use of both feet within the meaning of that term of the policy."

G. "Unless you are reasonably satisfied from the evidence that the plaintiff, with the aid of walking canes, has no substantial use of his feet for the purpose of standing and walking, your verdict cannot be for the plaintiff."

(12) "If you are reasonably satisfied from the evidence that the plaintiff is able to walk, with the aid of canes, about his home, and to his automobile, and from his automobile to his office, and to the offices of customers, then I charge you that the plaintiff has not suffered the entire loss of the use of both feet within the meaning of that term as used in the policy, and your verdict should be for the defendant."

(11) "If you are reasonably satisfied from the evidence that the plaintiff is able to walk, with the aid of canes, for a distance of about 100 feet before tiring, then I charge you that the plaintiff has not suffered the entire loss of the use of both feet within the meaning of that term as used in the policy."

Cabaniss & Johnston and L. D. Gardner, Jr., all of Birmingham, for appellant.

Beddow, Ray & Jones, of Birmingham, for appellee.

KNIGHT Justice.

Suit by plaintiff upon an insurance contract, issued by the defendant, and insuring the plaintiff against total and permanent disability, which continuously and wholly prevents the plaintiff for life from engaging in any occupation or employment for wage or profit, and containing the provision that the entire and irrecoverable loss of the use of both feet would be considered as permanent total disability.

It was admitted upon the trial of the cause that the plaintiff "is able to engage in a substantial occupation for which he is fitted, considering his education, experience and qualification, said admission being made for the purpose of this trial and this trial alone."

The evidence shows that the plaintiff suffered an injury in airplane accident in June, 1932, which resulted in permanent injuries to both feet. The policy sued on was then in full force and effect. That the injuries were serious is without dispute in the evidence. In fact, the defendant paid the plaintiff $150 monthly indemnity under the policy up to August 15, 1936, when it ceased to make further payments.

The evidence on behalf of the plaintiff tended to show that since the accident he has been unable to walk without the aid of two canes, ordinary walking canes, or unless he holds on to something. That he cannot balance himself without support. In walking, he puts his weight upon the handles of the two sticks. That with the aid of the sticks he has been able to walk "for a block" in good weather, but with great pain.

The evidence further shows, without conflict, that the plaintiff goes to his place of business, calls at times upon the "trade," and performs some of his ordinary duties for his company. In making the calls upon his customers, which he does occasionally, he would drive to their places of business, get out of his automobile, and walk in. He can and does walk about his home with the aid of his canes. Sometimes, he walks up the stairs to his office, if the elevator is busy. To stand or walk upon his feet causes him pain, considerable pain.

Dr. Moore, a witness for plaintiff, testified fully as to the character and nature of the plaintiff's injuries and gave it as his opinion that the plaintiff's feet "by themselves were useless. That he does use his feet with the aid of canes or other support." This physician further testified that the plaintiff's condition had not improved, and, over objection and exception of defendant, the court permitted the witness to testify that "the loss to plaintiff's feet" was irrecoverable. The witness testified that the plaintiff would be better off if both feet were amputated, and cork feet used; that he could then walk without canes, and could support himself, and would not have any pain with his feet.

Dr. Sherrill, a witness for defendant, testified that an operation might be helpful to one of plaintiff's feet, but could not be positive; that such an operation involved some danger, as a matter of course.

Plaintiff bases his claim to indemnity solely on the theory that he has entirely and irrecoverably lost the use of both his feet.

It is the duty of the court, of course, to construe and enforce contracts as they are written. We are not permitted, under the guise of construction, to make new contracts for the parties, nor to add to the terms of a contract words, terms, or conditions not contained in it. McGifford v. Protective Life Ins: Co., 227 Ala. 588, 151 So. 349; Montgomery Enterprises et al. v. Empire Theater Co., 204 Ala. 566, 86 So. 880, 19 A.L.R. 987.

Contracts of insurance are written by the insurer, and, whenever there is ambiguity or uncertainty in the contract, the court will resolve the uncertainty in favor of the insured; or, if the contract is susceptible to two constructions, the one most favorable to the insured will be adopted. However, where there can be but one meaning, the court has no choice but to give it that meaning. In such case there is no room for construction. McGifford v. Protective Life Ins. Co., supra.

The clause of the insurance contract upon which plaintiff relies for a recovery in this suit reads: "Independently of all other causes the company will consider...