Mason v. Loyal Protective Life Ins. Co., 49484

• Decision Date: 28 July 1958
• Docket Number: No. 49484,49484
• Citation: 249 Iowa 1167,91 N.W.2d 389
• Parties: Robert P. MASON, Appellee, v. LOYAL PROTECTIVE LIFE INSURANCE COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 389

91 N.W.2d 389

249 Iowa 1167

Robert P. MASON, Appellee, v. LOYAL PROTECTIVE LIFE INSURANCE COMPANY, Appellant.

No. 49484.

Supreme Court of Iowa.

July 28, 1958.

Bradshaw, Fowler, Proctor & Fairgrave, Des Moines, for appellant.

Dickinson, Throckmorton, Parker, Mannheimer & Raife, Des Moines, for appellee.

GARFIELD, Chief Justice.

This is a law action to recover payments claimed to be due on a policy of insurance against total disability resulting from sickness. There was a jury verdict and judgment for plaintiff. Upon this appeal defendant insurance company contends it was entitled to a directed verdict and the court erred in certain instructions to the jury. The vital question presented is the interpretation to be given the policy definition of 'total disability.'

The only evidence is that offered by plaintiff, a doctor of medicine in Des Moines. Of course in considering whether the testimony presents a case for the jury it must be viewed in the light most favorable to plaintiff. Plaintiff started practice February 3, 1947. That year his net income from practice; before taxes, was $6,009. By 1954 this figure had gradually increased to $27,159. During about five months of 1955 plaintiff's income from practice was $13,119 before taxes. In June, 1955, he was compelled to give up practice because of 'nerve deafness' which disabled him from performing several of the essential duties pertaining thereto. January 3, 1956, plaintiff took up a three-year residency in radiology at the government Veterans' Hospital in Des Moines. One engaged in radiology, largely X-ray work, is not required to depend on his hearing to a considerable extent.

For his first year of residency plaintiff was to receive $2,840 but actually was paid $2,712. For his second and third years he was to receive $3,195 and $3,550 respectively. (Trial was had in May, 1957, during the second year of residency.) Most 'residents' are married and have families. After three years of residency plaintiff plans to enter practice as a radiologist and at the end of one year he may take an examination for the purpose of being certified to the American Board of Radiology. This certificate is recognized by all doctors as evidence the holder is an adequately trained specialist.

The residency program at the Veterans' Hospital in Des Moines functions in conpection with the State University of Iowa Hospital in Iowa City where half the third year of training is spent. Instruction there is by professors in the S.U.I. medical school. Three months of the third year are spent in X-ray work on children at the Blank Hospital in Des Moines. The three years residency is a learning period which materially differs from the general practice of medicine. Plaintiff never did any X-ray work as a practitioner and had no training for anything except the general practice.

Most of the first year of residency the physician is being taught and is under extremely close supervision. He is not allowed to undertake treatment on his own responsibility and his supervisors closely check treatments he gives throughout the training period. During the second year of residency the physician is under similar supervision with somewhat more discretion as to when to seek advice from his chief superior. Physicians do not make careers out of being residents. According to the chief of the radiological service of the 'VA' hospital, 'it is a training period, like going to school.' The program is open only to those with an M. D. degree.

There is no satisfactory treatment or known cure for the nerve deafness plaintiff has acquired.

The policy in suit, issued June 6, 1948, for an annual premium of $192.60, provides for monthly indemnity of $200 during total disability resulting from sickness, but not beyond age 65 and for a period not exceeding ten years. The policy defines 'total disability' as 'complete loss of business time due to inability of the Insured to engage in his regular occupation or any gainful occupation for which he is reasonably fitted.' This is the vital provision of the policy, the meaning of which is in dispute.

I. The basic issue raised by defendant's motion for directed verdict is that as a matter of law plaintiff was not totally disabled within the policy definition. Defendant concedes for purposes of this appeal plaintiff was compelled to leave the general practice of medicine. It is clear this inability to engage in general practice resulted from sickness. Defendant's main argument is that the evidence establishes as a matter of law plaintiff was engaged in 'gainful occupation for which he is reasonably fitted,' as the policy states. The gainful occupation evidently referred to and the only one suggested is the residency in radiology.

We cannot accept this argument. If it were not for the money plaintiff receives during his residency certainly the finding would be justified it is a training period, like going to school, as the undisputed evidence shows, not a gainful occupation for which plaintiff was reasonably fitted. Indeed the training is for the purpose of fitting plaintiff for an occupation different from the one he previously pursued, the only one for which he had been fitted. Going to school usually helps bring ultimate financial gain to the student. But in the ordinary, popular sense it is hardly a gainful occupation.

Nor do we think the essential character of this residency as a training or educational period becomes, as a matter of law, by plaintiff's receipt of the modest payments allowed him, a gainful occupation for which he is reasonably fitted. These payments resemble the financial aid granted students by scholarships of various kinds or, perhaps more nearly, the educational allowances to veterans by the so-called 'G. I. bill.' A medical student who received a scholarship or educational allowances as a veteran is essentially a student, not a person engaged in a gainful occupation for which he is fitted. It will be remembered payments plaintiff received during his first year of residency approximated only one tenth his earnings during his last full year of practice. See in this connection Division III hereof.

A multitude of decisions involve insurance clauses essentially like the one here or less favorable to the insured. After reading a good many of them we are convinced our holding is supported by the great weight of authority. We are committed to the rule that such a disability clause should be liberally construed in favor of the insured. 'Total disability' as used in this connection does not mean, as its literal construction would require, a state of absolute helplessness. It means inability to do all the substantial and material acts necessary to the prosecution of the occupation of the insured or some other occupation which he might enter in a customary and usual manner. Hoover v. Mutual Trust Life Ins. Co., 225 Iowa 1034, 1040, 282 N.W. 781, and citations.

Virtually this same rule prevails in most jurisdictions. Many decisions supporting it are set out in the annotation 98 A.L.R. 788, 789, and earlier annotations there listed. See also 45 C.J.S. Insurance § 939 c (2); 29 Am.Jur., Insurance, section 1161. The Hoover case, supra, overrules Lyon v. Railway Passenger Assur. Co., 46 Iowa 631, perhaps the leading case in the country upholding the literal meaning of such a disability clause. It is apparent from Hurley v. Bankers' Life Co., 198 Iowa 1129, 199 N.W. 343, 37 A.L.R. 146, the Lyon decision was then (1924) adhered to with much reluctance. And Prusiner v. Massachusetts Bonding & Ins. Co., 221 Iowa 572, 265 N.W. 919, clearly conflicts with the Lyon case although it is not there mentioned by name.

The view we have adopted and the prevailing one generally is that total disability is a relative term which depends largely upon the character of the occupation, the capabilities of the insured and the circumstances of the particular case. It is usually a fact question to be determined by the jury. Prusiner and Hoover cases, supra; Metropolitan Life Ins. Co. v. Hawley, 210 Ark. 855, 198 S.W.2d 171, 173-174; Nickolopulos v. Equitable Life Assur. Soc. of United States, 113 N.J.L. 450, 174 A. 759; Belcher v. Prudential Ins. Co. of America, 205 S.C. 188, 31 S.E.2d 1, 3 (disability resulting from nerve deafness); Principi v. Columbian Mutual Life Ins. Co., 169 Tenn. 276, 84 S.W.2d 587, 589-590; Gibson v. Equitable Life Assur. Soc. of United States, 84 Utah 452, 36 P.2d 105, 109, and citations; Anair v. Mutual Life Ins. Co., 114 Vt. 217, 42 A.2d 423, 159 A.L.R. 547, 557; Annotation, 1 A.L.R.2d 952, 969, on 'Loss of hearing as within meaning of total disability clause'; 29 Am.Jur., Insurance, section 1161, page 874.

Precedents which support our holding that plaintiff's residency in radiology does not prevent his recovery as a matter of law and defendant was not entitled to a directed verdict include: Industrial Mut. Indemnity Co. v. Hawkins, 94 Ark. 417, 127 S.W. 457, 459, 29 L.R.A.,N.S., 635, 21 Ann.Cas. 1029; Aetna Life Ins. Co. v. Gullett, 262 Ky. 1, 89 S.W.2d 1, 3; Nickolopulos v. Equitable Life Assur. Soc. of United States, supra, 113 N.J.L. 450, 174 A. 759; Medlinsky v. Metropolitan Life Ins. Co., 146 Misc. 855, 263 N.Y.S. 179, 183-184; Blackwell v. Prudential Insurance Co. of America, 206 S.C. 320, 34 S.E.2d 57; Jefferson Standard Life Ins. Co. v. Curfman, Tex.Civ.App., 127 S.W.2d 567; Gibson v. Equitable Life Assur. Soc. of United States, supra, 84 Utah 452, 36 P.2d 105, 110.

The Hawkins case, supra, states (at page 459 of 127 S.W.): 'It was manifestly the intention of the parties that he should receive indemnity when he was * * * wholly and totally disabled and prevented from the prosecution of any business which he was able to do or capable to engage in; * * *.'

Aetna Life Ins. Co. v. Gullett, supra, expresses this view (at page 3 of 89 S.W.2d): 'It is not permissible to speculate about what the insured might earn if he should take...