Liner v. Travelers Ins. Co

• Decision Date: 24 November 1934
• Docket Number: Nos. 24079, 24094.,s. 24079, 24094.
• Citation: 180 S.E. 383,50 Ga.App. 643
• Parties: LINER. v. TRAVELERS INS. CO. TRAVELERS INS. CO. v. LINER.
• Court: Georgia Court of Appeals

50 Ga.App. 643

180 S.E. 383

LINER.

v.TRAVELERS INS. CO.

TRAVELERS INS. CO.

v.LINER.

Nos. 24079, 24094.

Court of Appeals of Georgia, Division No. 2.

Nov. 24, 1934.

Rehearing Granted Jan. 24, 1935.

Judgment Adhered to after Rehearing Feb. 16, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Walker County; James Maddox, Judge.

Suit by R. D. Liner against the Travelers Insurance Company. Judgment for defendant, plaintiff's motion for a new trial was overruled, and plaintiff brings error, defendant filing a cross-bill of exceptions.

Reversed on the main bill of exceptions, and affirmed on the cross-bill.

F. M. Gleason, of Rossville, for plaintiff in error.

Finlay & Campbell, of Chattanooga, Tenn, and Maddox, Matthews & Owens, of Rome, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Judge.

1. The question whether a person is totally disabled, within the meaning of the terms of a certificate of group life insurance providing that certain benefits will be paid to the certificate holder when he shall "become disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit, " is generally for the jury to determine; and where, in a suit on a certificate of such insurance, containing the above clause, the insurer files a plea in abatement, alleging that it was incumbent upon the plaintiff, as a condition precedent to his right to maintain a suit on the certificate, to submit to it due proof of total disability, and that the plaintiff had not filed proof showing that he was totally disabled, within the meaning of that term as defined in the certificate, but that it appeared from the proof submitted that the plaintiff was not so totally disabled, and it appeared from the evidence adduced upon the trial of the plea that the jury could have found that the plaintiff while working in July, 1931, fell and injured his back, resulting in a hernia, that he worked until December, 1931, when he was operated on for the hernia, that as soon as he was able after the operation he returned to work and worked until April, 1932, when he could work no longer on account of his injury, and that he had been totally disabled since then from pursuing the work which had theretofore been performed by him, it was error for the trial judge to direct the jury to find in favor of the insurer on this issue raised by the plea in abatement. Travelers' Insurance Co. v. Sanders, 47 Ga. App. 327, 170 S. E. 387, and cit.; Metropolitan Life Insurance Co. v. McKee, 49 Ga. App. 533, 176 S. E. 118; Metropolitan Life Insurance Co, v. Pack, 49 Ga. App. 535, 176 S. E. 119; Prudential Life Insurance Co. v. South, 179 Ga. 653, 177 S. E. 499. This is true, although the two written statements of the doctors attending the plaintiff, attached to his statement, did not show the disability as claimed.

2. Total disability exists when one is wholly disabled from pursuing the usual and customary duties of his employment on which he must depend for a living; and this is so, even though the policy sued on provides that the disability must be total and permanent so as to prevent the insured from pursuing any occupation for compensation or profit. Metropolitan Life Ins. Co. v. McKee, supra. "The fact that the insured attempted for a season to discharge the duties of his employment, before ascertaining his inability to do so and refraining from such employment, should not prevent a recovery for benefits thereafter accruing under the provisions of the policy." Marchant v. New York Life Insurance Co, 42 Ga. App. 11 (4), 155 S. E. 221; Travelers' Ins. Co. v. Sanders, supra.

3. The court sustained in part the plaintiff's demurrer to the plea in abatement interposed by the defendant. To this judgment the insurer excepted pendente lite, and error is assigned thereon in the cross-bill of exceptions. Plaintiff was the holder of a certificate of group insurance which depended upon the existence of a master group policy of insurance between his employer and the insurance company. The fact that the plaintiff did not pay any premiums on this insurance, but that the certificate was issued to him by his employer because of his employment, and the premiums were paid by his employer, and the fact that the certificate depended upon a master policy between...