Marchant v. New York Life Ins. Co.

• Docket Number: 20273.
• Decision Date: 29 August 1930
• Citation: 155 S.E. 221,42 Ga.App. 11
• Parties: MARCHANT v. NEW YORK LIFE INS. CO.
• Court: Georgia Court of Appeals

155 S.E. 221

42 Ga.App. 11

MARCHANT v. NEW YORK LIFE INS. CO.

No. 20273.

Court of Appeals of Georgia, Second Division

August 29, 1930

Rehearing Denied Sept. 29, 1930.

Syllabus by the Court.

Motion to dismiss because pleadings and evidence do not authorize recovery is improper, where petition alleges case, though evidence does not sustain allegations; petition to recover benefits for total disability stated cause of action.

A motion to dismiss a case upon the ground that under the pleadings and the evidence introduced there can be no legal recovery is never a proper motion where the petition alleges a cause of action, no matter whether the evidence fails, or to what extent it may fail, to sustain the allegations made. The petition in the instant case stated a cause of action and the motion to dismiss should have been overruled.

Evidence that injury disabled insured from performing substantially all his customary duties authorized finding of "total disability," defined as injury preventing insured from engaging in any occupation.

In a suit to recover benefits for a total disability as provided in an insurance policy which defined a "total disability" as one whereby the insured is "prevented *** from engaging in any occupation whatsoever for remuneration or profit," evidence that the insured had sustained a bodily injury by reason of which he was forced to desist from substantially all of the usual and customary duties of the occupation being pursued by him at the issuance of the policy would have authorized a finding of total disability within the meaning of the contract.

Work of farming, sawmilling, selling cattle, and dealing in fertilizer engaged in by insured should be considered as unit as insured's occupation under disability policies.

Where the insured before his injury was engaged in several occupations, as (1) farming, (2) sawmilling, (3) selling hogs and cattle, and (4) buying and selling cotton seed and fertilizer on a salary or commission basis as the employee of another, and the policy contained nothing to indicate a contrary intention, these four lines of business should be treated as a unit of employment, and all taken together should be considered as the occupation followed by the insured at the time the policy was issued.

Insured's attempt to discharge employment before determining inability to do so should not prevent recovery of disability benefits.

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.

Evidence that injury disabled insured from performing practically any of duties of his various pursuits, though able to perform portion of duties, authorized finding of total disability.

Where in a suit for the total disability benefits provided by a policy as described above, the insured testified that at the time of his injury he was engaged in the pursuits of farming sawmilling, dealing in live stock, and serving another as employee in the purchase and sale of certain commodities, and the evidence authorized the inference that the insured thereafter became incapacitated by injury from performing practically any of the duties of the first three lines of endeavor and was able to pursue the fourth only at great suffering and inconvenience, and that this employment constituted only a small percentage of his normal business activities, a jury could have found that the insured had sustained a total disability within the intent and purview of the policy, notwithstanding he may have been able to perform some portion of the duties of each of such pursuits.

The evidence would have authorized a verdict in favor of the plaintiff, and the court erred in not submitting the case to the jury.

Error from City Court of Camilla; Bent. Burson, Judge.

Suit by I. M. Marchant against the New York Life Insurance Company. Judgment for defendant, and plaintiff brings error.

Motion to dismiss because pleadings and evidence do not authorize recovery is improper, where petition alleges case, though evidence does not sustain allegations.

I. M Marchant brought suit upon two insurance policies issued by New York Life Insurance Company. At the close of the plaintiff's evidence upon the trial, the court sustained the defendant's motion to dismiss the case upon the ground that under the pleadings and the evidence the plaintiff was not entitled to recover, and the plaintiff brought the case to this court for review. The pertinent provisions of the two policies were identical, and were as follows:

"And the Company agrees to pay to the insured ten ($10 per $1,000 of the face of this policy) dollars each month during the lifetime of the insured, and also to waive the payment of premiums, if the insured becomes wholly and presumably permanently disabled before age 60, subject to all the terms and conditions contained in Section 1 hereof.

"Section 1--Disability Benefits

"1. Total disability.--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.

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

"3. Benefits.--Upon receipt at the Company's Home Office, before default in payment of premium, of due proof that the insured is totally and presumably permanently disabled and that such disability occurred after the insurance under this policy took effect and before its anniversary on which the insured's age at nearest birthday is 60 years, the following benefits will be granted: (a) Income payments.--The Company will pay to the insured a monthly income of $10 per $1,000 of the face of the policy during his lifetime and continued disability, beginning immediately on receipt of said proof. Any income payment due before the company approves the proof of disability shall be payable upon such approval. If disability results from insanity, income payments under this section will be paid to the beneficiary in lieu of the insured. (b) Waiver of premiums.--The Company will waive payment of any premium falling due after approval of said proof and during such disability. Any premium due prior to such approval is payable in accordance with the terms of the policy, but if due after receipt of proof will, if paid, be refunded upon approval of proof.

"4. In the event of default in payment of premium after the insured has become totally disabled, the policy will be restored upon payment of arrears of premium with interest at 5 per cent., provided due proof that the insured is totally and presumably permanently disabled as herein defined, is received by the Company not later than six months after said default, and the benefits under this section shall then be the same as if said default had not occurred.

"5. It is further agreed that the total and irrecoverable loss of the sight of both eyes, or of the use of both hands or of both feet or of one hand and one foot shall be considered total and permanent disability.

"6. Recovery from disability.--The Company may from time to time demand due proof of the continuance of total disability, but not oftener than once a year after it has continued for two full years. Upon failure to furnish such proof, or 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.

"7. The sum payable in any settlement of the policy shall not be reduced by income payments made nor by premiums waived under the above provisions. Dividends, loan and surrender values shall be the same as if the waived premiums had been duly paid. If any benefit under this section is unpaid at the time of the insured's death it shall be payable to the person entitled to the proceeds of the policy.

"8. These disability benefits will not apply if the disability of the insured shall result from self-inflicted injury or from military or naval service in time of war."

The petition as amended alleged the issuance and delivery of the policies, payment of the premiums, and a compliance with all other provisions of the policies by the insured; the happening of a described injury on October 3, 1927, while the policies were of force, from which the plaintiff sustained a permanent, total disability within the terms of the policies; the furnishing of and acceptance by the company of proofs of such injury and disability; and the payment by the defendant of the benefits provided in the policies as for a permanent, total disability until February 3, 1929, after which the defendant made no further payments. The alleged injury was "the fracture of the upper posterior portion of rim of the acetabulum and the dislocation of the head of the femur, said injury having been received by your petitioner on the date aforesaid when a two-horse wagon with two mules hitched thereto ran completely over the body of your petitioner." The suit was to recover the benefits at the rate of $30 per month for the period from February 3, 1929, to the filing of the suit on July 3, 1929, and also premiums paid by the plaintiff in the meantime, for which the plaintiff alleges he was not liable.

The evidence is not voluminous, and is such that the inferences which might have been drawn therefrom can be discerned best from a...