Metropolitan Life Ins. Co. v. Lambert

• Decision Date: 26 May 1930
• Docket Number: 28719
• Court: Mississippi Supreme Court
• Parties: METROPOLITAN LIFE INS. CO. v. LAMBERT

128 So. 750

157 Miss. 759

METROPOLITAN LIFE INS. CO. v. LAMBERT

No. 28719

Supreme Court of Mississippi

May 26, 1930

Division A

APPEAL from circuit court of Forrest county HON. W. J. PACK, Judge.

Action by Tillie Lambert against the Metropolitan Life Insurance Company. From a judgment for plaintiff defendant appeals. Reversed in part, and affirmed in part.

The instructions numbered 1, 4, and 8, referred to in the opinion, are as follows:

"No 1. The court instructs the jury for the plaintiff that if you believe from the evidence in the case that the plaintiff was injured while engaged in his employment with the Mississippi Central Railroad Company, and that the said injury, if any, is permanent and that the plaintiff was thereby totally and permanently disabled and prevented thereby from carrying on any work for compensation or profit and that the policy or certificate of insurance upon which he sues was in force and effect at the time he received said injury, and if you further believe from the evidence in the case that as a proximate and direct result of the injury received by the plaintiff, if any, that common care and prudence required him to desist from performing or engaging in work of any character in order to effect a cure, if possible, even though he might have the physical strength and the mental ability to perform some work with pain and suffering, on account of said injury, if any, yet under the terms of the policy you would be authorized to find under such facts and circumstances that the plaintiff is permanently, continuously and wholly prevented by such injury, if any, from performing ally work for compensation or profit."

"No 4. The court instructs the jury for the plaintiff that if you should believe from the evidence in the case that the plaintiff is an uneducated laborer and that he suffered severe bodily injury while working for the Mississippi Central Railroad Company as a car repairer while his insurance was in force and before his sixtieth birthday, rendering it permanently and wholly impossible for him to follow continually in the usual, customary and natural manner any substantial gainful occupation, the plaintiff is entitled to recover and it is the sworn duty of the jury to find for the plaintiff."

"No. 8. The court further instructs the jury for the plaintiff that in order for the plaintiff to recover in this case he need only prove that he was by reason of physical disability resulting from bodily injury suffered while actively engaged at work for the Mississippi Central Railroad Company as car repairer, while his insurance was in force, and prior to his sixtieth birthday, permanently, continuously and wholly prevented, in the exercise of ordinary care and prudence, from transacting or performing any of the substantial and material acts necessary to the performance of the duties of his occupation, or any other work for compensation or profit, without thereby jeopardizing his life or suffering great physical pain and anguish."

Reversed in part, and affirmed in part.

Wells, Jones, Wells & Lipscomb, of Jackson, and Currie, Stevens & Currie, of Hattiesburg, for appellant.

Totally and permanently disabled means that insured must be unable to perform not only the duties of usual occupation but the duties of any other occupation.

Life & Casualty Company of Tennessee v. Jones, 73 So. 566; Shipp v. Metropolitan Life Insurance Company, 111 So. 453; Buckner v. Jefferson Standard Life Insurance Co., 90 S.E. 897, 172 N.C. 762; Lee v. New York Life Ins. Co., 125 S.E. 186, 188 N.C. 538; Parten v. Jefferson Standard Life, 30 Ga.App. 245, 117 S.E. 772; Supreme Tent of Knights of Maccabees of the World v. King, 79 Ill.App. 145; Lyon v. Railway Passenger Assur. Co., 46 Iowa 631; Supreme Tent of Knights of Maccabees of the World v. Cox, 60 S.W. 971, 25 Texas Civ. App. 366; Hurley v. Banker's Life Co., 198 Iowa 1129, 199 N.W. 343, 37 A.L.R. 146; Starling v. Supreme Council Royal Templars of Temperance, 66 N.W. 340, 108 Mich. 440, 62 Am. St. Rep. 709; Neill v. Order of United Friends, 149 N.Y. 430, 44 N.E. 145, 52 Am. St. Rep. 738; Potter v. Accident Insurance Company, 29 Ind. 210.

An instruction telling the jury that the plaintiff, although uneducated and unskilled in human anatomy, medicine and surgery, is a competent witness to testify in his own behalf concerning his own state of physical disability and the cause thereof is erroneous as it is duty of court to rule on competency of evidence and is a comment on weight of evidence.

Potera v. Brookhaven, 95 Miss. 774, 49, So. 617; Hooks v. Mills, 57 So. 545, 101 Miss. 91; Odoneal v. Henry, 12 So. 154, 70 Miss. 172.

An instruction is erroneous where it stresses the lack of education of the plaintiff and the right of recovery on the bodily injury preventing plaintiff from following in the usual customary and natural manner any substantial gainful occupation.

Lee v. New York Life Ins. Co., 125 S.E. 186, 188 N.C. 538.

An instruction authorizing the jury to find for the plaintiff if it believed he was forced not to engage in work of any character without defining for how long a time he might reasonably refrain from work and be considered permanently and totally disabled, and also authorizing a recovery notwithstanding the plaintiff might have had the physical strength and mental ability to perform work with pain and suffering is erroneous.

Copies of instruments cannot be introduced in evidence without laying a predicate therefor by showing that the originals have been called for or that the originals have been lost.

Jordan v. Mississippi Central Railroad Company, 65 So. 275, 107 Miss. 323; Weiler v. Monroe County, 74 Miss. 682; Gulfport Sash Mfg. Co. v. Town of Bond, 95 Miss. 723; Kanson Hat & Cap Mfg. Co. v. J. D. Blakeney & Son, 142 Miss. 851; Boldridge v. Stribling, 101 Miss. 666; McLeod Lbr. Co. v. Anderson Mercantile Co., 105 Miss. 498.

An insured cannot recover face of policy for total disability where policy provides for benefits to be paid in monthly installments.

Commercial Casualty v. Campfield, 243 Ill.App. 453 (1927); Marshall v. John Grosse Clothing Co., 184 Ill. 421; Hutchinson v. Supreme Tent, etc., 22 N.Y.S. 801 (1893); Atchinson v. Benefit, etc., 22 S.W.2d 631 (Tenn. 1930); Hardie v. Metropolitan Life, 7 S.W.2d 746 (Mo. 1928); New York Life v. English, 72 S.W. 58 (Texas 1903); State Life v. Atkins, 9 S.W.2d 290 (Texas 1928).

Currie & Currie, of Hattiesburg, for appellees.

Total disability does not mean absolute physical inability on the part of the insured to transact any kind of business pertaining to his occupation. It is sufficient if his injuries were of such a character that common care and prudence required him to desist from transacting any such business so long as it was reasonably necessary to effectuate a cure.

Metropolitan Casualty Ins. Co. v. Cato, 74 So. 114; 5 Elliot on Contracts, Sec. 4398; United Life, etc., Co., Case, 55 Hun. 98, 8 N.Y.S. 263; Thayer v. Standard Life, etc., Company, 68 N.H. 577, 41 A. 182; 1 Corpus Juris, 464; Equitable Life Assurance Society v. Serio, 124 So. 485; 14 R. C. L., par. 491, page 1316; Lobdill v. Laboring Men's Mutual Association, 65 Am. St. Rep. 542; Starling v. Supreme Council, 108 Mich. 440, 62 Am. St. Rep. 709; Clark v. Forrest Lumber Company, 120 So. 91; Pacific Mutual Life Ins. Co. v. Branham, 70 N.E. 174, 176; U. S. Casualty Co. v. Hanson, 79 P. 176; Woods v. United States, 28 F. Rep. (2d), Ser. 771; Provident Life & Accident Ins. Co. v. Andy, 109 So. 670; United States v. Eliasson, 20 F.2d 821.

We submit the Cato case in 74 So. 114, and the Serio case in 124 Southern, 485, and the authorities cited by these two cases as a complete answer to the criticism of this instruction and of each and every instruction criticized by appellant.

When insurer denied liability as is shown by its letters it was then unnecessary for insured to furnish any further proof of disability.

A. Horse Insurance Co. v. Nero, 68 So. 780; Planters Ins. Co. v. Comfort, 50 Miss. 675; Insurance Co. v. Gibson, 72 Miss. 66, 17 So. 13.

OPINION

Smith, C. J.

This is an appeal from a judgment against the appellant on an employee's disability insurance policy. The suit is on a certificate issued by the appellant, setting forth:

"This is to certify that under and subject to the terms and conditions of group policy No. 1872 G. Tillie Lambert an employee of Mississippi Central Railroad Company (herein called the employer) is hereby insured for two thousand dollars, if death occur while the employee is in the employ of the employer, the amount of insurance in force on said employee, in accordance with group policy as above, will be paid to Florette Lambert beneficiary."

The group policy referred to in the certificate contains the following provision:

"Upon receipt, at the Home Office in the City of New York, of due proof that any employee while insured hereunder, and prior to his sixtieth birthday, has become totally and permanently disabled, as the result of bodily injury or disease, so as to be prevented thereby from engaging in any occupation and performing any work for compensation or profit, the Company will, in lieu of the payment at death of the insurance on the life of the said Employee, as herein provided, pay equal monthly installments, as hereinafter described, to the said Employee, or to a person designated by him for the purpose, or, if such disability is due to, or is accompanied by, mental incapacity, to the beneficiary of record of the said Employee. "

The certificate further provides that:

"Any employee shall be considered as totally and permanently disabled who furnishes due proof that, as a result of bodily injury suffered or disease contracted while his insurance...