Metropolitan Life Ins. Co. v. Bovello, 4354.

• Decision Date: 03 May 1926
• Docket Number: No. 4354.,4354.
• Citation: 56 App. DC 275,12 F.2d 810
• Parties: METROPOLITAN LIFE INS. CO. v. BOVELLO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 275, 12 F.2d 810 (1926)

METROPOLITAN LIFE INS. CO. v. BOVELLO.

No. 4354.

Court of Appeals of District of Columbia.

Submitted March 3, 1926.

Decided May 3, 1926.

B. S. Minor, H. P. Gatley, H. B. Rowland, and A. P. Drury, all of Washington, D. C., for plaintiff in error.

Milton Strasburger, of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals.

BARBER, Acting Associate Justice.

This is a review by writ of error of a judgment of the municipal court of the District of Columbia in favor of Bovello, plaintiff below, against the Metropolitan Life Insurance Company, the defendant. The same parties will be respectively referred to as plaintiff and defendant in this opinion.

May 2, 1923, defendant issued to plaintiff a certain policy of insurance, whereby it insured plaintiff for a term of six months from said date against the results of disease or sickness contracted while the policy was in force. In case of total disability, as described in the contract, the weekly indemnity payable thereunder for the period of such total disability, not exceeding 52 weeks, was $25.

Claiming to be entitled to the indemnity for total disability, the plaintiff about September 23, 1923, made claim under his policy therefor, and was paid the same by defendant to May 16, 1924, in 34 payments, of $25 each. Defendant then refused to make any further payments, and plaintiff later brought this suit for the balance of $450 of the total disability indemnity. In the court below plaintiff had judgment on the verdict of the jury for the amount so claimed.

The clause of the policy upon which plaintiff's right of recovery rests is as follows:

Clause 9: "If such disease or sickness, directly and independently of all other causes and while this insurance is in force, shall continuously and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation and shall require and receive the continuous care and treatment of a legally authorized physician, the company will pay the weekly indemnity for the period of such total disability, not exceeding 52 weeks."

In connection therewith it is necessary to consider the following questions propounded to plaintiff, and his answers thereto embraced in the application for the policy, which questions and answers were in terms made a part of the insurance contract.

"What is your occupation? (If more than one, state them all.) Steamship ticket agent, notary public, and musician.

"State in full the duties of your occupation? Selling tickets and furnishing music."

The important question here is: What meaning shall be given to the expression, "shall continuously and wholly disable and prevent the insured from performing any and every kind of duty pertaining to his occupation," found in clause 9 of the contract; it being assumed in that connection that plaintiff had three occupations — steamship ticket agent, notary public, and musician?

The defendant contends that the above-quoted language must be construed literally, and held to mean that the plaintiff must be continuously — that is, "without interruption, without cessation or intermission, or without intervening space or time" — wholly disabled from performing any and every kind of duty pertaining to each of his three named occupations, and that if, at any time during the indemnity period of 52 weeks, he was able to or did perform any act which was a duty to be performed in any of said occupations, his right of recovery is thereby defeated. As the determination of this issue, before considering any specific error relied upon by defendant, will tend to simplify the discussion, we proceed to consider the same.

The above statement of defendant's claim, which, no doubt, is in accord with the literal meaning of the language employed, suggests at once the reason why the courts have refused to enforce such or similar contracts in their literal meaning, but rather have given them what is called a reasonable construction, in view of the purpose for which they were made. The construction claimed by defendant, carried to its logical conclusion, would result that, if the plaintiff were, during the indemnity period, for the space or time of one-half hour, or even less, able to play the clarinet (the instrument used by him as a musician), take one notarial acknowledgment, or transact the business of selling one steamship ticket, the defendant would be released from all subsequent liability, regardless of the fact that plaintiff was for the remainder of the period totally disabled mentally and physically from again performing any of the acts last above mentioned. The same result would follow if plaintiff ceased to require and receive the continuous care of a legally authorized physician, although in fairness it may be said that defendant does not insist that the provision for such care must receive such literal application.

While there is not an entire harmony of views as to the interpretation to be given to contracts substantially like or much similar to the one here, yet we are satisfied the weight of authority is that it was only incumbent upon the plaintiff to show by the fair balance of testimony that he was, by reason of disease or sickness, directly and independently of all other causes, unable, in the exercise of ordinary or common care and prudence, to transact or perform the substantial and material acts necessary to the performance of the duties of each and all of his occupations.

In Cooley's Briefs on the Law of Insurance, vol. 4, p. 3290 et seq., the rule of construction referring to total disability provisions is stated as follows: "* * * And where the policy insures against injuries `wholly or continuously disabling him from transacting any and every kind of business pertaining to his occupation of merchant,' it is not necessary, to constitute total disability, that an injury should render the insured physically unable to transact any kind of business pertaining to his occupation, but it is sufficient if the injury is such that common care and prudence require him to desist from transacting such business in order to effect a cure."

In the same connection, the same author, speaking of provisions substantially identical with those of clause 9 of the policy here, says: "On the contrary, the weight of authority supports the rule that, even under the clause providing for indemnity for disability preventing insured from prosecuting any and every kind of business pertaining to his occupation, it is sufficient if insured is disabled from performing the substantial and material acts connected with such occupation."

The following are among the many authorities which may be referred to on the subject: Joyce on Insurance, vol. 5, pp. 5218, 5219; Ruling Case Law, vol. 14, p. 1316; Young v. Travelers' Ins. Co., 80 Me. 244, 13 A. 896; Lobdill v. Laboring Men's Mut. Aid Ass'n, 69 Minn. 14, 71 N. W. 696, 38 L. R. A. 537, 65 Am. St. Rep. 542; Thayer v. Standard Life & Acc. Ins. Co., 68 N. H. 577, 41 A. 182; Workingmen's Mut. Protective Ass'n v. Roos, 63 Ind. App. 18, 113 N. E. 760; Clarke v. Travelers' Ins. Co., 94 Vt. 383, 111 A. 449; Ætna Life Ins. Co. v. McCullagh (June 1922) 195 Ky. 136, 241 S. W. 836.

The testimony introduced on behalf of the plaintiff below tends to show that, prior to the time he made the claim for indemnity, he was a musician, played a clarinet at the Hotel Burlington, for which his weekly salary was $18; that he furnished music for private entertainments, such as dances, etc., and directed orchestras; that he received, when his orchestra played, $1 for each man each time he played; that he solicited people to buy steamship tickets, which the company would afterward send him, and which he would deliver; that he received a commission of 5 per cent. thereon, but the extent of that business...