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

• Decision Date: 16 December 1939
• Citation: 134 S.W.2d 155,175 Tenn. 319
• Parties: JOHN HANCOCK MUT. LIFE INS. CO. v. SPURGEON.
• Court: Tennessee Supreme Court

134 S.W.2d 155

175 Tenn. 319

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

Supreme Court of Tennessee.

December 16, 1939

Error to Law Court of Kingsport, Sullivan County; Shelbourne Ferguson, Judge.

Action by Bill Spurgeon against the John Hancock Mutual Life Insurance Company, on a group disability policy. To review a judgment of the Court of Appeals reversing a judgment for plaintiff, both parties bring certiorari.

Judgment of the Court of Appeals reversed, and judgment of the circuit court affirmed.

Kelly Penn & Hunter, of Kingsport, for plaintiff in error.

Harry L. Garrett, of Kingsport, for defendant in error.

COOK Justice.

Spurgeon hereafter referred to as plaintiff, was insured under a group policy issued to employes of the Tennessee Eastman Corporation. The policy insured each employe against total disability. On October 10, 1937, this action was commenced to recover on the policy. It was stated in the declaration and shown by proof that plaintiff became totally disabled on February 7, 1937, and gave notice of the disability August 16, 1937. The company denied that plaintiff was totally and permanently disabled, but, if so, said he did not become disabled while the contract of insurance was in force.

The cause was tried before the court and jury, resulting in a verdict for plaintiff. On appeal, the defendant assigned as error (1) that upon the undisputed facts the plaintiff was not shown to be totally and permanently disabled; (2) the trial court erred in charging the jury that in the absence of a provision in the contract of insurance requiring it, the insured could not be compelled to submit to a surgical operation to remove the disability; and (3) that the policy had lapsed by non-payment of premiums and the termination of the plaintiff's employment with the Eastman Corporation.

The Court of Appeals confined discussion to the question of whether or not the trial judge erred in refusing to direct a verdict, and pretermitted defendant's assignments of error to the charge and upon the insistence that the insurance had terminated. After reviewing the evidence, the Court said: "We reach the conclusion that when under all the evidence insured's condition is such as to result in total disability which may be removed by a minor, non-serious operation, he is not permanently and totally disabled within the meaning of the policy providing for disability benefits only in case of total and permanent in capacity." Upon that conclusion the judgment was reversed. Both parties filed petition for certiorari, the plaintiff to review the Court's action in dismissing the suit, and defendant to review the pretermitted questions.

Looking to the evidence, we find that after plaintiff had worked for Tennessee Eastman Corporation three years and five months, he was forced to quit because of ill health; that before quitting, he had suffered with hemorrhages from hemorrhoids, weakness and smothering spells; that these ailments became worse as he worked on, and he lost weight from one hundred and forty-three pounds to one hundred and twenty-eight; and became so weak, sick and nervous, that he could not work at all after February 7, 1937, although he attempted to work one day in April, 1937. He had been continuously insured under the policy for more than three years.

Drs. G. C. Keener and Paul Cox examined the plaintiff. Both testified that he was anemic, due to loss of blood from hemorrhoids, that his condition was permanent, and that he was totally unable to engage in labor; but both stated that an operation was the only cure for hemorrhoids and after a successful operation correcting the hemorrhoidal condition, the plaintiff would get well. We quote from Dr. Cox: "He was anemic and losing blood and was not able to engage in labor for wages. In order to improve his condition, he would first have to be given a blood transfusion and then correct the hemorrhoid condition by a surgical operation. As long as his condition had run, that was the only way anything could be done for him."

Defendant introduced Drs. McNeer, Tipton and Wiley. They testified that an operation for hemorrhoids was a minor operation and, without complications, was not serious, and that the disability could be removed by an operation.

Upon the facts presented by the record, the trial judge committed no error in refusing to direct a verdict, nor did he err in charging the jury that in the absence of a provision in the policy requiring it, the insurer could not avoid liability for refusal of the insured to submit to an operation to remove the disability.

The Court of Appeals rested its conclusion upon the authority of Prudential Insurance Co. v. Davis, 18 Tenn.App. 413, 78 S.W.2d 358, where it was held that one is not totally and permanently disabled when according to the undisputed testimony the cause of disability could be removed by a non-dangerous, surgical operation. It was shown in that case that Davis was injured by accident that fractured his hip; that after recovery from the injury he could walk like an ordinary man, but certain movements were painful, the pain being caused by a small spur of bone, the removal of which would relieve the pain and remove the disability. The Court said that the insured had the burden of making out a case of permanent total disability, and that he failed to make out his case where the undisputed testimony disclosed that he suffered only from a minor ailment, removable by a non-dangerous operation.

This question first came before the Court of Appeals in 1927, in the case of Tittsworth v. Ohio National Life Insurance Co., 6 Tenn.App. 206. We quote from the opinion of Judge DeWitt therein as follows:

"It is therefore insisted that the continuing disability of the complainant is not due to the accident, but to his unreasonable refusal to have performed an operation which would restore him to sound condition; that it is his duty thus to prevent any aggravation or continuation of the disability; that upon him is the duty to take such steps to restore himself to sound condition as an ordinarily careful and prudent man would take under such circumstances. The question thus presented is not controlled by the rule applied in cases arising under the Workmen's Compensation Act, for this Act contains in section 25 thereof, a provision which obligates the employer to furnish and the employee to accept such medical and surgical treatment as may be reasonably required. In Sun Coal v. Wilson, 147 Tenn. 118, 245 S.W. 547, this provision of said Act was applied so that an injured employee suffering from hernia and refusing to have an operation performed which would cure it, was denied compensation provided in the Act. The court held that the proposed operation was reasonably required; that reason and common sense dictated that the claimant submit to a surgical operation; but the court also said:

"'We do not wish to be understood as holding that, under all circumstances, a claimant should submit to an operation when so requested by the employer, but we have not a case here where the operation is serious or dangerous, or where "the physicians disagree as to the advisability of an operation."'

"Nor is this case analogous to that of a plaintiff suing for damages for personal injuries, who refuses unreasonably to submit to a surgical operation, for in such case it is the duty of the plaintiff to mitigate the damages by submitting to such operation, following the advice or instructions of a physician or surgeon. In such case it is generally held that the proximate cause of the injury or disability at present existing, is at least in part the plaintiff's own willfulness or neglect. See Donovan v. New Orleans Railway & Light Co., 132 La. 239, 61 So. 216; 48 L.R.A.,N.S., 109 and notes thereunder.

"In this case the complainant seeks to recover upon a contract of insurance. This contract contains no provision, express or implied, that in case of injury or disability the insured will submit to a surgical operation. It is probably presumed that the insured, out of a motive of self-protection or self-preservation, would obtain such medical and surgical treatment as would be necessary; but this matter is left open in the contract. It is not the subject of any stipulation. It is a matter which the insured is left to determine for himself; and if he, through apprehension, or for any other cause, has determined that he will not submit himself to an operation, he is under no contractual obligation to do so.

"It is well settled that it is against the policy of this State to permit implications in insurance contracts. As to contracts of life insurance it is expressly provided by chapter 441 of the Acts of 1907, section 3275al of Shannon's Code, that the entire contract of insurance shall be contained in the policy. Jackson v. Loyal Additional Benefit Association, 140 Tenn. 495, 205 S.W. 318; Arnold v. Insurance Co., 131 Tenn. 720, 177 S.W. 78; Fields v. Metropolitan Life Insurance Co., 147 Tenn. 464, 249 S.W. 798, 36 A.L.R. 1250. Such requirement of a surgical operation, though a minor one and reasonable, under any circumstances, not being contained in the stipulations of the written contracts, the defendant insurance company is not entitled to take advantage of the failure or refusal of the insured to submit to such an operation."

The Supreme Court of West Virginia, in 1932, in Code v. John Hancock Mutual Life Insurance Co., Ill W.Va. 518, 163 S.E. 4, 5, 86 A.L.R. 354, 358, took a contrary view to that expressed in the Tittsworth case, the court holding that it was the duty of plaintiff to submit to medical treatment saying: "Was it plaintiff's duty in the premises to have the infected tooth extracted, the diseased gums...