Life & Cas. Ins. Co. of Tennessee v. Peacock

• Decision Date: 17 October 1929
• Docket Number: 6 Div. 419.
• Court: Alabama Supreme Court
• Parties: LIFE & CASUALTY INS. CO. OF TENNESSEE v. PEACOCK.

124 So. 229

220 Ala. 104

LIFE & CASUALTY INS. CO. OF TENNESSEE v. PEACOCK.

6 Div. 419.

Supreme Court of Alabama

October 17, 1929

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action on a policy of accident insurance by Fayth L. Peacock, a minor, suing by her next friend, R. H. Peacock, against the Life & Casualty Insurance Company of Tennessee. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Affirmed.

Jacobs & Carmack, of Birmingham, for appellant.

Ewing Trawick & Clark, of Birmingham, for appellee.

THOMAS J.

The suit was upon a policy of insurance, and resulted in small verdict for plaintiff under the disability clause of said instrument.

If the complaint was duly challenged by demurrer for lack of averments of fact, that the premiums had been duly paid on said policy, and that the same was in full force and effect at the time of the injury, under rule 45, these facts being fully supplied by the evidence, the overruling of demurrer will not cause a reversal. Best Park Co. v. Rollins, 192 Ala. 534, 68 So. 417, Ann. Cas. 1917D, 929; Vance v Morgan, 198 Ala. 149, 73 So. 406; Clinton v Bradford, 200 Ala. 308, 76 So. 74; Birmingham-Southern R. Co. v. Goodwyn, 202 Ala. 599 81 So. 339; Ex parte Minor, 203 Ala. 481, 83 So. 475, 10 A. L. R. 687. These omitted allegations are supplied by the indisputable or uncontradicted evidence, and no injustice has been done by overruling defendant's demurrer to the complaint. That is to say, assuming that the demurrer efficiently took the stated objection to the complaint, and that it was erroneously overruled, the error was cured as we have indicated.

The important question for decision was raised by objection to the policy in evidence as showing a variance, and by the general affirmative charge. The general proposition insisted upon by appellee is thus stated: That a clause in a policy of accident insurance providing indemnity by reason of the loss of two feet does not limit recovery to a showing of the loss of two entire feet. 1 C.J. p. 467, § 175. The disability clause contained in the policy sued upon is:

"If, while this policy is in full force and effect and while there is no default in the payment of premium beyond the four weeks' grace period, the insured shall lose by severance both hands, or both feet, or one hand and one foot, or lose permanently the sight of both eyes, total and permanent disability will be deemed to exist, and one-half of the amount of insurance then payable in the event of death shall be paid immediately upon receipt by the Company of due proof of such loss and surrender of this Policy."

Counsel for appellant, contending for reversible error, in refusing the general affirmative instruction requested under the evidence and the rule of law that obtains (McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135), states the evidence was that she lost the left foot, but only the toes of the right foot, leaving the right foot seven and a quarter inches long, and in such condition that the insured has reasonably good use of it as a foot, and walks on it with little impediment all the time, though aided by the use of a spring or brace in her shoe. The physician said of this use: She could not walk as good on that foot now as she could before, that her use of it is limited, and she would tire quickly. The only witnesses were the insured's father, the insured, and Dr. J. H. Stephens. The father testified in part as follows:

"That policy was in force and effect and the premiums paid at the time she lost her foot."

While the said witness was on the stand, he called the insured to the witness stand, and she "got up and walked to the witness stand unassisted and without crutch or other means of assistance."

The father as a witness testfied further:

"My little girl, the plaintiff, walked around unassisted, some 12 or 15 feet just then. She does not have her natural right foot now. A portion of it is gone. All of the toes are gone. I will have her take off her shoe there and show that right foot. ***

"I could not say how much of the foot is gone, not being a surgeon. There is a portion of it here (indicating) gone. I know all the toes of the other foot are gone. How much of it is gone besides the toes, I cannot say. I have just stated that the toes are all gone. There is still bone up there in the foot. I could not say that the toes are all that is gone. I don't know how much more of her foot is gone. I wasn't at the operation. It will take the surgeon to state that. She does not walk on that right foot all right. She manages to get about, and all that. Sure, she walks on it all the time. She don't have any crutches. She goes to school every day, with no crutch or anything-not while she has the limb on. I mean the left limb. She doesn't need to have any crutches to go to school. The only thing artificial on the right foot, we have to have a spring in her right shoe. There is no part of the right foot that is artificial."

He then measured the plaintiff's bare right foot from the heel to the front, and it showed seven and a quarter inches in length.

Dr. J. H. Stephens, who treated the insured and amputated the toes of her right foot, testified as follows, when asked to look at the right foot of plaintiff and tell what part of the foot is missing:

"There are five bones about this length (indicating) in here (indicating), and five toes that came off. It seems that all the toes are gone. I don't remember whether any of the bones are gone, or not, the metatarsal bones. There isn't anything missing except the toes. That does not completely destroy the use of the right foot. She can walk reasonably well on the right foot. ***

"I have no independent recollection whether anything is gone from that foot (indicating right foot) except the toes, but am just judging from the length of it. I could not tell, unless I had an X-ray picture, whether or not any of the other bones were gone. The toes won't ever grow back. It is a permanent disability. She cannot walk as good on that foot now as she could before. I didn't suggest to Mr. Peacock any special shoe, or anything, for this child to walk with, on the right foot. I never made any suggestion about the right foot. ***

"I would say that she is limited, more or less, from walking, but as to putting anything on there (meaning right foot) would make it better, with just the toes being gone,

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