Manhein v. New York Life Ins. Co.

• Decision Date: 31 October 1941
• Docket Number: 6333.
• Citation: 5 So.2d 918
• Court: Court of Appeal of Louisiana — District of US
• Parties: MANHEIN v. NEW YORK LIFE INS. CO.

5 So.2d 918

MANHEIN v. NEW YORK LIFE INS. CO.

No. 6333.

Court of Appeals of Louisiana, Second Circuit

October 31, 1941

Rehearing Denied Nov. 28, 1941.

Writ of Certiorari and Review Denied Feb. 2, 1942.

Appeal from First Judicial District Court, Parish of Caddo Rob't. J. O'Neal, Judge.

Montgomery, Montgomery & Fenner, of New Orleans, and James G. Cowles, of Shreveport, for appellant.

Booth & Lockard, of Shreveport, for appellee.

TALIAFERRO Judge.

Defendant issued to plaintiff a life insurance policy wherein it agreed to pay him $25 per month during his lifetime should he become "wholly and presumably permanently disabled before the age of sixty, subject to all the terms and conditions contained in Section One" of the policy. Section One, so far as germane to the issues herein, reads as follows, to-wit:

"Disability shall be deemed to be total whenever the Insured is wholly disabled by bodily injury or disease so that he is prevented thereby from engaging in any occupation whatsoever for remuneration or profit.

"Disability shall be presumed to be permanent,--(a) Whenever the Insured will presumably be so totally disabled for life; or--(b) After the Insured has been so totally disabled for not less than three consecutive months immediately preceding receipt of proof thereof.

" * * * if at any time it shall appear to the Company that the Insured is able to engage in any occupation for remuneration or profit, no further income payments shall be made nor premiums waived."

In June, 1931, plaintiff became wholly incapacitated to perform any sort of work and in compliance with the policy provisions, defendant then began paying him monthly disability benefits. These continued with little interruption until May, 1939, at which time payments were discontinued without reason therefor being assigned. After amicable demand for resumption of said payments and refusal, this suit followed.

Plaintiff alleges that he is now totally, wholly and permanently disabled and has been in this condition without interruption since 1931, and thereby he is prevented from earning a livelihood or pursuing any gainful occupation. He sues to recover monthly payments of disability benefits, also the penalty and attorneys' fee provided for by Act 310 of 1910, on the theory that defendant's action in discontinuing payments was unjust, unreasonable and arbitrary.

Defendant resists the suit on the ground that plaintiff is not now nor has he been since May, 1939, totally and wholly disabled within the provisions of the policy contract.

There was judgment for plaintiff in keeping with his demand. His attorneys' fee for services in the lower court was fixed at $150. Defendant prosecutes appeal. Answering the appeal, plaintiff prays for increase in the quantum of attorneys' fee to $250, the full amount sued for.

In June, 1931, an unusually severe type of arthritis developed in plaintiff's knees, ankles and left hip. He was confined to bed therefrom for eleven months, a goodly part of which time was spent in hospitals. The hip joint became immobile from ankylosis and a successful operation was performed to relieve its impairment. This occurred in the year 1934, and confined plaintiff to bed for three and one-half months. The left leg, as a result of the operation, is one and one-half (1 1/2) inches shorter than the right.

After plaintiff's recovery from the operation and his ailments had been alleviated as much as medical science and surgery could do, these conditions remained and are present today, to-wit:

Right knee and both ankles are so stiff from ankylosis as to materially impair flexion; also, ability to move the feet in any direction is materially impaired. Callouses have developed in both feet. The left leg is atrophied from above the knee to the toes.

Since June, 1931, plaintiff has been under the observation of Dr. T.J. Smith, a reputable physician in Shreveport, who has regularly treated his ailments. He knows and is in a position to know plaintiff's condition better than any one else, and gave the following testimony which, considered in connection with the above described pathological conditions, is enlightening, to-wit:

"Q. All right, an occupation that calls for being on your feet for substantially an eight hour day, day in and day out. Under those conditions would you say he has a disability? A. He is certainly disabled insofar as being on his feet is concerned. I just made the comment that if he is on his feet all day I am sure he has discomfort, because I have seen him along and he has come to me along because of swelling in his feet, and because of these callouses bothering him, and the mechanics in his lower extremities are not good, as I have stated. He does not walk straight up and down on his legs. They are bearing outward and his knees inward, which throws an angle on his joints, which, of course, is not comfortable. You cannot put an abnormal angle on a joint in walking. I should say that he is disabled, insofar as being on his feet is concerned, to a marked degree.

"Q. Can there be any substantial improvement? A. Of course, his improvement has reached the maximum point quite some time back. That is, in about 1935 or 1936; possibly before that. There is always a chance of increased disability in a case like his, with age. That would not be immediate but gradual. In an older person, as you know, the joints are not as flexible, even under normal conditions, as in a young person. I should say his disability might increase with age. That would depend on weight and a lot of things. Generally, I should say it might be expected to increase."

The correctness of the conclusions and opinion of Dr. Smith is not contradicted by any witness in the case. Dr. Kerlin, who testified for defendant, does not dissent therefrom, but, on the contrary, substantially agrees with Dr. Smith.

Plaintiff's father has operated a small florist shop in the City of Shreveport for many years. After completing a high school course, plaintiff began working in his father's shop and in 1931, when he first became disabled, was performing the duties of designer. That was his occupation at the time. He acquired the knowledge, skill and ability needful to fill that position from practical experience and observation in his father's business and by attending elsewhere short courses in designing.

The duties of a designer in a small florist shop are somewhat numerous besides that of designing, and making up wreaths, sprays and other forms of floral decorations. It includes the handling of heavy objects. Perforce such duties are performed almost entirely while standing up. Much bending of the body forward over a wide table is required in assembling material preparatory to and in the confection of large wreaths, etc., for funerals, marriages, and other public affairs. It is not unusual that such a designer has to be on the job for long hours and sometimes all night in order to fill heavy rush orders.

Plaintiff is now thirty-six years of age. He is married and has one child. He did nothing in the way of work to engage his mental and physical faculties from June, 1931, until he reentered his father's business some time during the year 1935. He did this on his father's advice. The father, after stating that plaintiff stayed at his home and was doing nothing but twiddling his thumbs, testified: " * * * I saw that his mental condition was being rapidly deteriorated on the strength of it. He was fretting and stewing * * * So he has come down to the shop since that time and, when his leg don't hurt him much, he does what I would say would be a minor part down there whenever the necessity arises."

Plaintiff does no designing and is unable to do so. His father has a designer regularly employed. Plaintiff answers phone calls assists in sending out monthly statements and when there is a rush of business or help is short, he waits on customers who desire to make small purchases. He is paid no salary, but has access to the cash drawer of his father's business. If he stands on his feet for as much as forty-five minutes, his legs and ankles swell badly. He is forced, in order to have relief, to bathe them in hot water and to massage them. Following such experiences he invariably lies down on a cot, there provided for his special use, until the swelling subsides. He is unable to walk for more than a block or two without his legs, ankles...